Trial Magazine

Medical negligence tort “reform” never goes away completely, so AAJ Public Affairs was not surprised to find it in the Trump administration’s budget for the 2019 fiscal year. The budget proposal includes a $250,000 cap on noneconomic damages that will increase with inflation over time; a three-year statute of limitations; and a provision that would allow evidence of a plaintiff’s collateral sources, such as workers’ compensation, to be used at trial.

Unlike H.R. 1215 (the “Protecting Access to Care Act of 2017”)—the medical malpractice, nursing home, and drug and device bill that passed the House of Representatives last year but languished in the Senate—the budget proposal calls for safe harbors for health care providers who follow practice guidelines. Former U.S. Department of Health and Human Services (HHS) Secretary Tom Price championed practice guidelines proposals from health care providers when he was a member of the House. The budget proposal also calls on the secretary of HHS to create expert panels and health courts to review medical negligence cases.

CFPB and other budget issues. The administration’s budget also included a provision to defund the Consumer Financial Protection Bureau (CFPB) by 2028. New CFPB leader Mick Mulvaney is already hard at work dismantling the restrictions that the agency had imposed on payday lenders while also looking to end current CFPB investigations that help consumers, including one seeking to discover how hackers were able to access consumers’ personal information from credit reporting company Equifax.

It is important to remember that the president’s budget is just a submission to Congress. The House and Senate budget committees put together the actual budget and submit a budget resolution for each body to pass. A budget resolution is not a law and does not require the president’s signature, but it does serve as a blueprint for the appropriations process—and that’s an area AAJ carefully monitors.

Unending appropriations threats. Funding levels for federal government programs are established by an “authorizing committee” through legislation, but the available funding for most of these programs is provided through appropriations bills. While there are technically 12 separate appropriations bills, the reality has been that Congress passes one or two of these bills and funds the rest of the government through a continuing resolution—which supports programs at the same level as the previous resolution—or it passes one enormous spending bill, sometimes called an omnibus measure.

We also look for policy riders attached to an appropriations measure, and there are several tort reform riders that are routine threats. Many riders, for example, appear in the House transportation appropriations bill and particularly affect admiralty and trucking claims. However, we watch for all kinds of riders that affect your practices.

Frequent shutdown showdowns. At the end of every September, Congress should pass an appropriations measure to fund the government for the next fiscal year. The 2018 fiscal year appropriations, for example, should have been enacted Oct. 1, 2017. But Congress frequently extends the deadline by passing a continuing resolution to fund at existing levels. For fiscal year 2018, Congress incrementally passed spending measures that applied for short time periods but made it difficult for government agencies to implement ­long-term programs.

When Congress funds incrementally, AAJ continually tracks tort reform riders that don’t belong in spending bills. Congress finally passed the 2018 budget in late March, but as we look ahead to 2019 appropriations, we remain vigilant.

Susan Steinman is AAJ's senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.