pensation for future medical expenses is a substantial component of the recoveries that claimants receive, “a defining damages variable” in the words
of one commentator.156 This holds true for settlements as well as court-ordered recoveries.157 A report by the Rand Corporation, for example, estimated that medical costs comprised approximately 25 percent of total payments for medical liability.158 Fewer persons injured by negligence therefore
would obtain legal representation if the MOOPL proposal reduced their damages for future medical expenses.159
E. The Proposal Would Give Critics of the Tort System What They
Were Unable to Obtain Through the Democratic Process
If, as is likely under the MOOPL proposal, tort claimants would be unable
to obtain sufficient compensation to enable them to obtain future medical
care, the effect would be as if the ACA imposed a cap on recoverable dam-
ages for health care expenses. When the ACA was before Congress, organi-
zations representing medical professionals and other interest groups lobbied
hard to have provisions limiting patients’ rights to sue for medical malprac-
tice included in the statute.160 They failed.161 As enacted by Congress and
signed by President Obama, the ACA left the right to sue unaltered.162
After losing in the democratic process, critics of the tort system now seek
to use the courts to accomplish their goals.163 They contend that, even though
Congress rejected their entreaties, courts should limit injured claimants’ recoverable damages for future health care costs to the MOOPL that the act
156. Ferrante, supra note 138 at 12.
157. See Geslison & Jacobs, supra note 87, at 244 (“[I]n the vast majority of personal
injury cases, the settlement amount or the damages awarded by the verdict were tied closely
to the actual damages—primarily lost wages and medical costs—incurred as a result of the
158. AUERBACH, supra note 138 at 21.
159. Id. at 43.
160. See Leonard J. Nelson, III et al., Medical Liability and Health Care Reform, 21
HEALTH MATRIX 443, 445 (2011) (“Although it was highly unlikely that health care reform
legislation would include damages caps, they were much discussed during the debate. In fact,
damages caps emerged as a primary component of Republican alternatives to the proposed
Democratic health reform bill.”).
161. See id. at 444 (“[ A]lternative medical liability reforms (e.g., disclosure and offer,
health courts, safe harbors) . . . w[ere] not included in the final legislation.”).
163. See generally Tort Reform, AM. MED. ASS’N, http://www.ama-assn.org/ama/pub/
(providing a comprehensive list of cases in which defendant argue for the limitation of recoverable damages for future health care costs).).