Medical-Tort Law: Ranking the States

How much do a state’s laws governing medical malpractice and other torts relevant to health care affect the availability of care?  Plenty!

Lawrence J. McQuillan’s & Hovannes Abramyan’s 2010 edition of the U.S. Tort Liability Index, which has a number of measurements included in the U.S. Index of Health Ownership, ranks states according to 42 variables.

Eight of the measurements in the U.S. Tort Liability Index are relevant to the U.S Index of Health Ownership: One output and seven inputs. The previous edition of the U.S Index of Health Ownership included six measurements of medical tort, but McQuillan & Abramyan have discovered more variables for their 2010 edition of the Tort Liability Index, allowing more detailed measurement.

As a partial update of the U.S. Index of Health Ownership, this brief analysis calculates a medical-tort index from a simple average of the eight relevant variables.  Mississippi, Nevada, Michigan, Colorado, and Louisiana lead the pack; while Vermont, Rhode Island, Kentucky, Pennsylvania, and Iowa bring up the rear. Even the leaders, however, lag in some measurements.

Mississippi, for example, leads on procedural rules: Pre-trial screening or arbitration and conditions on the use of expert witnesses. However, it does not limit lawyers’ ability to abuse their privilege by limiting their share of awards. Colorado and Louisiana also fail to impose limits. Unfortunately, the laggards do not show a similar pattern: The bottom five states perform poorly in all eight measurements.

Reducing the burden of medical tort is critical to increasing Americans’ health ownership and reducing medical costs that curtail our access to care. Some progress is evident, but states aiming to improve their medical-tort laws still have a long way to go.

Louisiana Legislature Says No to Mandate

The Pelican Institute for Public Policy offers some local flavor on Louisiana’s recent action on the individual mandate:

Louisiana Legislature Passes Measure Opposing ObamaCare Insurance Mandate

Original bill weakened by amendment, but state is first with Democrat-controlled legislature to pass Health Care Freedom Act

By Fergus Hodgson
Pelican Institute for Public Policy

On Sunday the Louisiana House concurred with the Senate to pass HB 1474, which provides that no resident of Louisiana “shall be required to obtain or maintain a policy of individual health insurance coverage.” The measure was weakened by a controversial amendment, but Louisiana is the first state with Democratic majorities to pass legislation that opposes federal insurance mandates.

Representative Kirk Talbot sponsored the bill to set up a legal challenge to federally mandated medical insurance. However, after the House passed the bill comfortably, the Senate Health and Welfare Committee amended it so that it could not supersede any provision of the Patient Protection and Affordable Care Act of 2010.

While the legal value of the bill may be diminished, Michael Cannon, Director of Health Policy Studies for the Cato Institute, asserts that “these state laws are valuable politically as well as legally, because they signal widespread, bipartisan opposition to ObamaCare.” Christie Herrera, Health Task Force Director for the American Legislative Exchange Council echoed Cannon’s perspective. “Today, Louisiana sends a clear message to the President and Congress that there is broad, bipartisan opposition to the centerpiece of their health reform agenda.”

Louisiana legislators modeled the bill after ALEC’s Freedom of Choice in Health Care Act, which has already passed in Georgia, Idaho, Virginia, and Arizona. 42 states have filed or announced legislation similar to HB 1474, and the intent of such legislation has been to protect state residents from a federal requirement to purchase health insurance and empower the attorney general to sue on behalf of individuals. Separately, Louisiana attorney general Buddy Caldwell has already joined a multi-state lawsuit challenging the federal health care law.

However, after legislators altered and fused different versions early in the process, the Senate committee amended the bill at the final hurdle. The Senate’s most vigorous opponents to federal health care mandates did not restore the original bill, and support for the latest version became a null issue.

Since the legislative session finishes today, limited time remained for further debate or amendments. House proponents of the original bill had little choice but to accept the latest version, rather than send it back to Senate. Representative Talbot points out that the bill still “sets a conflict with the Federal Health care plan that will bolster our lawsuit against the federal government,” but just as importantly “it lets our position be known that Louisiana does not want the federal government health care plan.”

Senator Heitmeier, as author of the amendment and member of the Health and Welfare Committee, played a key role in the final process. Why he amended the bill so severely, rather than oppose it outright, is unclear. On Thursday Heitmeier’s office did accept questions from the Pelican Institute and promised a response, but they are yet to follow through.

Louisiana Senate Backs Challenge, 28-4

The Louisiana Senate has endorsed a challenge to Obamacare by a vote of 28-4. As BusinessWeek summarizes it, “The proposal by Republican Rep. Kirk Talbot, of River Ridge, would put opposition to President Barack Obama’s signature health care revamp into Louisiana law, declaring that no one in the state can be required to have health insurance or be required to pay a penalty if they refuse to carry insurance.” The House has already passed a similar measure, and you can expect Gov. Bobby Jindal to sign it.

Health Freedom Act Passed by Louisiana House; Now in Senate

Louisiana is one state that is considering a measure meant to challenge the U.S. law requiring individuals to purchase health insurance. HB 1474 would “prohibit any resident of this state from being required to purchase health insurance coverage,” “authorize the attorney general to initiate litigation relative to such prohibition,” and “to provide for recovery of delinquent medical expenses incurred by uninsured individuals.”

The Louisiana-based Pelican Institute for Public Policy provides reflections on a recent Senate hearing on the bill. In particular, it describes the attempt by a critic of the legislation to portray the individual mandate as the promotion of personal responsibility. But Jamison Beuerman says, “How can an individual exercise his/her responsibility when they are deprived of  that choice altogether?”

The measure has already been passed by the House by a vote of 60-15.

What the Health Freedom Act Does and Doesn’t Do

The Louisiana House passed HB 1474 by a vote of 59-15 vote, so it now goes to the Senate. The bill has three major provisions: there shall be no requirement that Louisiana residents purchase health insurance; it gives the state attorney general standing to sue on behalf of citizens who are the subject of a mandate; and it says that if you don’t have insurance of your own, don’t come to the state for financing.

That’s my quick read of the bill, but the Pelican Institute for Public Policy offers up five things you need to know about the bill. Perhaps the most interesting is the statement that the bill would affect only the individual mandate, not the entire health “reform” act. Interestingly enough, though, I read elsewhere that the law does not have a severability clause. Most laws have this clause, which says something like ‘if any part of this law is struck down, the rest of the law stays intact.” The lack of such a clause, by this reading, means that the entirety of ObamaCare–all delicious 2,000 pages of it–is vulnerable to a single challenge. I don’t know if that is so, but it’s a pleasant thought.

Louisiana House Endorses Health Freedom Act

From New Orleans: “The House of Representatives voted 59-15 Thursday to declare that Louisiana residents should not be subject to the looming federal mandate to buy health insurance, an anchor provision of President Barack Obama’s recently enacted health care overhaul.”

Here’s the relevant text of the bill (PDF), which has been watered down from a constitutional amendment:

It is hereby declared that the public policy of this state, consistent with our constitutionally recognized and inalienable right of liberty, is that every person within this state is and shall be free from governmental intrusion in choosing or declining to choose any mode of securing health insurance coverage without penalty or threat of penalty.

No resident of this state, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the state or the federal government, shall be required to obtain or maintain a policy of individual health insurance coverage. No resident of this state shall be liable for any penalty or fine for not obtaining or maintaining health insurance coverage.

The attorney general of this state may, and shall have standing to, pursue litigation in any federal or state court or any administrative forum on behalf of one or more state residents whose constitutional rights may be subject to infringement by an act of congress or the implementation of a federal legislative program tha relates to or has any impact upon the rights or interests of such residents as provided in this Section.

After implementation of any provision of law requiring an individual to obtain or maintain health insurance, the following shall apply:

(1) If the individual opts not to obtain or maintain health insurance coverage pursuant to this Section and incurs but fails to pay any expenses for medical care in this state and the health care facility or provider is compensated for such care by any state or federal funds, then the state shall collect such unpaid amounts from that person through any legal means necessary.

(2) The uncompensated care pool of this state shall not incur any liability for unpaid medical bills of any person who does not obtain or maintain health insurance.

The language about certain people not receiving benefits from the uncompensated care pool was an amendment to the original language, and might fairly be considered something of a poison pill. On the other hand, it’s a good reminder of the “golden rule” — he who has the gold makes the rules.

On Tax Day, Consider IRS Enforcement of the Insurance Mandate

Today the Times Picayune published my response to Sen. Landrieu’s article on health care reform. See the full text below the fold. It seems appropriate that the letter runs on April 15th, a good day to contemplate the possibility of the IRS enforcing an unprecedented new requirement that all Americans purchase a particular product.

Mary Landrieu may think this represents progress but I don’t, and neither do most Louisianians. Fortunately there are two bills pending in the legislature (HB 94 and SB 26) that challenge the individual mandate. (more…)

Will Louisiana Defend Health Care Freedom?

While much attention has been focused on Attorney General Buddy Caldwell’s decision to join the lawsuit challenging new federal health care law, Louisianians should also take note of two important bills under consideration by the state legislature.

Rep. Kirk Talbot and Sen. A.G. Crowe have introduced measures that seek to protect the right of Louisianians to make their own health care and health insurance choices. Specifically, these bills (HB 94 and SB 26) would prohibit any individual or employer from being penalized for not purchasing government-defined health insurance, and protect the right to pay directly for medical care.

These measures are modeled after the American Legislative Exchange Council’s (ALEC) Freedom of Choice in Health Care Act. Louisiana is now one of 41 states in which legislation modeled on this act has been or will be introduced.

There is no doubt that our health care system is in need of reform. But Americans are justifiably concerned that expanding the government’s role in health care will lead to further restrictions on their liberty. The bills introduced by Rep. Talbot and Sen. Crowe would preserve important freedoms.

There are legitimate Constitutional questions about the federal government requiring individuals to purchase a product. Even allowing for a broad interpretation of the Commerce Clause, the individual mandate may cross the line. Further, the current Supreme Court has demonstrated a willingness to protect states from federal overreach. Louisiana legislators now have the opportunity – and responsibility – to defend freedom of choice in health care.

Louisiana State Senator Challenges Health “Reform” Plans

Twenty-nine and counting.

That’s the number of states in which legislators have introduced, or plan to introduce, legislation challenging the House or Senate health care bills that include a personal mandate, sweetheart deals (Cornhusker Kickback), and commandeering of state offices.

According to the Pelican Institute for Public Policy, A.G. Crowe, a member of the Louisiana Senate, “has authored legislation that seeks to ‘Prohibit state or local governmental coercion of any Louisiana employer, health care provider, or individual to compel participation in any health care system or health insurance plan.’”

Among the legal objections to the House and Senate bills: They violate the Equal Protection clause, the Interstate Commerce Clause, and a recent Supreme Court ruling on the relationship of the federal government to the states.

Would You Like a California Cash Cow or New York Pork With Your Florida Flim Flam?

California’s recent budget deficits will look bush league relative to the fiscal hurricane that federal health reform will unleash on California and many other states.   The problem stems from the expansion of Medicaid, the program for low-income residents, jointly funded by the federal and state governments.

Most observers anticipate that if President Obama does sign a bill this year, it will look more like the Senate bill (an amendment to H.R. 3590), which would pull millions of Americans into government dependency for their access to medical services via an expansion of Medicaid.

The Congressional Budget Office (CBO) reckons that 15 million more people will enroll in Medicaid if the Senate bill becomes law (p. 8), which is just a whisker less than half the total number of persons the CBO forecasts will be newly insured, 31 million, as a result of the “reform.” This is like the government stating that it will reduce the number of jobless by putting millions more on welfare and classifying them as “employed.”

From 2014 through 2016, the federal government would cover the entire cost of roping these people into Medicaid. By 2019, however, the federal government would pay only about 90 percent of the costs of Medicaid expansion, leaving the states to pick up 10 percent. That’s how it was supposed to work, until we learned about elements in the bill such as the “Cornhusker Kickback.”

Senate Majority Leader Harry Reid bought Senator Ben Nelson’s vote in favor of the bill by promising that Nelson’s state of Nebraska would never have to pay for any of the Medicaid expansion. The federal government or, more properly, the taxpayers of California and 48 other states, would pay for Medicaid expansion in Nebraska. Similar deals for other senators were labeled the “Louisiana Purchase” and the “Florida Flim-Flam.”

Some governors are getting pretty uncomfortable with the way the deal has been hammered out. In a pre-Christmas letter to Speaker Nancy Pelosi, Governor Schwarzenegger charged that the federal plan levied an unfunded mandate on California that would cost the state $4 billion to $5 billion.  But he’s unlikely to get a “California Cash Cow.”

Many states, including California, have long since convinced the federal government to allow them to increase Medicaid eligibility. Of course, this has allowed them to draw down even more federal dollars. (Before the February 2009 “stimulus” bill, the federal government paid for 57 cents of each Medicaid dollar, on average.) Because these states have already bloated their Medicaid programs, they will not enjoy the bailout the federal “reform” offers states that have limited Medicaid enrollment to date.

One of the 24 measurements in the U.S. Index of Health Ownership is the level of Medicaid eligibility. A state scores low if it has recklessly expanded government dependency in this way. In the third edition (2009), California ranks 30th out of 50 states but plenty of states do worse. Consider New York, a lowly 45th in the Index’s measurement of Medicaid eligibility.

“We are, in a sense, being punished for our own charity,” moaned Governor David A. Paterson, in response to the proposed Medicaid funding formula. “Charity” is an interesting noun to describe the Empire State’s approach to Medicaid. Last July, New York State and New York City agreed to pay the federal government $540 to settle allegations from the U.S. Department of Justice that they had submitted false Medicaid claims! A December 26 audit by state Comptroller Thomas DiNapoli accused the state’s health bureaucrats of recently approving $92 million in fraudulent payments.

Wendy Saunders, New York’s Deputy Secretary of Health, now shamelessly suggests a heaping plate of “New York Pork.” She thinks the federal government should throw an extra $30 billion New York’s way over 10 years, above what’s currently in the Senate bill. Unfortunately, in order to convince its stenographers in the media that the “reform” is deficit neutral, the majority took such drastic steps as proposing a luxury tax on tanning salons and cutting about $400 billion from seniors’ Medicare benefits.

All this comes in order to fund a significant expansion of government, a plan supposedly too big to fail. Governors Schwarzenegger and Paterson, and their long-suffering taxpayers will soon learn, however, that the feds are unlikely to find the dollars for more bailouts.