Is heatlh care reform good for medical malpractice victims?

John Fisher
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Stopping Medical Injustice
On Sunday, the U.S. House of Representatives passed a landmark health care reform bill that represents the biggest expansion of government-funded health care since the creation of Medicare.  The health care reform bill will extend insurance coverage to nearly 32 million and halt industry practices that discriminate against the sick and the reforms mean that 95% of all documented Americans will have insurance coverage by 2016, according to Congressional Budget Office.  The bill will be signed by President Obama on Tuesday.

What does the health care reform mean for the victims of medical malpractice?  It may help.

The health care reform bill is free of any provision that would limit the rights of persons injured by medical malpractice.  Although widely discussed during legislative sessions, any limitations on the rights of malpractice victims, such as malpractice panels and caps on non-economic damages, was not included in the legislation.  A very good thing!

Often, the persons most at risk for malpractice are the uninsured in the middle class and now there will be 32 million more persons covered by health insurance.  The poor are usually insured by Medicaid and the disabled are typically covered by Medicare.  However, there is a large segment of middle class society that cannot procure health insurance coverage through their employer, Medicaid or Medicare.

Currently, if a person stops treating with physicians, the defense attorneys focus on the lack of treatment by claiming that the injured victim was not really injured or lacks proof of medical treatment to substantiate the injury.  In the absence of medical treatment, personal injury victims have a weak argument to substantiate their injury and they must resort to explaining to the jury that they could not afford health insurance. With this testimony, the defense attorney can attack the credibility of the injured victim, which is much easier to do than attacking his treating physician.  Because the injured victim is an "interested party", the jury may not be convinced by his testimony that he could not afford medical treatment and thus, be less inclined to accept the testimony.  This is a big reason that health care reform will help injured victims with their cases.

Another benefit of the health care reform bill is that injured victims will no longer have to accept "pennies on the dollar" for their malpractice lawsuit in order to pay for their medical expenses. When there is no health insurance and the injured victim is unable to work, he may need to settle his lawsuit to fund the expenses of continuing medical treatment.  With the passage of the health care reform bill, injured victims are less vulnerable to "low ball" offers knowing that they are covered by health insurance for their medical needs.  The injured victim will not feel pressured to accept low settlement offers simply to meet the costs of their medical treatment.  This will benefit injured victims by reducing the pressure tactics often placed on injured victims by claims adjusters who spot a weakness in the victims' inability to pay for their medical treatment.

I believe the health care reform bill will benefit the victims of medical malpractice.



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