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Federal Tort Reform President Bush had indicated that he would like to have tort reform through the Federal government, primarily as regards medical malpractice. Some have indicated that the Federal government has no role in tort reform, but that such should be the province of the states since torts are a matter of state law. However, in fact the responsibility for tort litigation and, thus, tort reform is shared by both the Federal and state governments. Thus, there are some aspects of tort reform which are properly addressed through Federal legislation. In fact, in one area there has already been Federal tort reform, namely in the area of securities litigation. While it would be possible to pull almost all tort reform in under the control of the Federal government through the expansive application of the interstate commerce clause accepted by the courts, such is not necessary and not really proper. Instead, Federal tort reform should deal primarily with procedural aspects of tort litigation in Federal courts. Class Action Litigation. Class action litigation is something which is used frequently in Federal courts. Many cases which might actually involve state law torts are, in some states, brought in Federal courts when possible merely because of the class action procedures. Virginia is a state where class actions are not permitted. However, if Federal jurisdiction can be obtained through any means, then what might otherwise be basic tort litigation in a Virginia court will be brought in Federal court in order to have more plaintiffs, greater damages and higher fees for the attorneys involved. Class action litigation is best suited to single incident accidents involving many people, if at all (see Recommendations concerning litigation for more on class actions.). Such accidents would include an airplane wreck, a train wreck or something similar. In such instances, suits should be structured so that forum shopping is impermissible. Thus, two changes in Federal procedure applicable to class actions would be very appropriate. First, class actions should be limited to single incident accidents involving multiple people. Second, such suits should be brought where the accident occurred. Other Procedural Changes. There are other procedural changes which would be entirely appropriate to apply to any tort litigation conducted in Federal courts. These are elimination of contingent fees, limitation of non-economic damages and award of attorney's fees to the party substantially prevailing on the merits in the litigation. These proposals are discussed in more detail under Recommendations. Medical Malpractice Litigation. There is one area of substantive tort litigation where it would seem proper for some Federal legislation. If it is appropriate to have the Federal government provide insurance for medical procedures, then it is appropriate for the Federal government to provide some amount of protection to those doctors participating in Federal medical programs. Both Medicare and Medicaid severely restrict the payments to providers of medical services, medicine and appliances. Similar limitations often enter into other areas of medical practice through contracts for HMO's, PPO's and similar types of medical provider contracts. Since actual payments are restricted, then it is appropriate to provide caps on possible malpractice awards for any provider of medical services or goods to Medicare and Medicaid recipients. As in other areas of Federal legislation, any such law should provide that stricter state limits would control over any Federal limits so that states could still have room for legislation. |
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