Getting a Recovery for Medical Malpractice; Obama Considers Limiting Medical Malpractice Cases

As part of his plan for national health insurance, President Obama is considering limiting medical malpractice cases.  See The New York Times story of June 15, 2009.

The President addressing the American Medical Association.

The President is placing medical malpractice on the table as a “bargaining chip” with the medical community in order to gain support for a national health plan.  Although the President said that he was against caps on recoveries, as had been proposed by President Bush, he is open to a discussion that doctors be protected if they follow standard guidelines for medical practice.  The big question is whose standards and what standards?

The President indicated that he is open to some discussion and that he does not have a specific plan in mind at this time. 

We think that limits on the rights of injured people is a big mistake and very dangerous.

First, this would be a federal intrusion into state law.  Each state has its own tort law.  Some states have limited recoveries.  This has been done through state legislation.  Other states have not.  For example, in New York, limits on recoveries have been proposed and have not been passed.  A federal law would override the will of the people of New York.  Obama’s plan would be a federalization of states’  law.  The federal government has already taken-over the auto industry and banking.  Is medical malpractice next?  This would be another federal intrusion into our everyday lives. 

Second, it is unclear what medical standards would be applied.  There was some discussion that a doctor’s adherence to “standard medical guidelines” would be a defense.  Whose “guidelines”?  Is not this usurping the jury’s power to determine whether a doctor deviated from the standard of care in the community? 

Third, the ultimate cost savings are unknown. 

The medical community has decried medical malpractice lawsuits as a great drain on the system.  However, from our perspective there are very few medical malpractice cases.  In our screening of  medical malpractice claims from our clients, only the strongest of strong cases with the most serious injuries make it to the courthouse.  We would say that only 1 out of 10 client inquiries results in a case.  Also, based on anecdotal discussions with judges, about 2 of 3 medical malpractice trials result in defense verdicts.

We urge that the public carefully consider the impact of changing medical malpractice law as well as the overall impact of  a national health insurance plan.

If you have been injured due to medical malpractice, please call me for a consultation at 800-581-1434 or write to

Mark E. Seitelman, June 16, 2009,


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