Just before the House leadership’s 794-page health care reform bill went to a Ways & Means markup last Thursday, a remarkable provision was slipped in that amounts to one of the more audacious and far-reaching trial lawyer power grabs seen on Capitol Hill in a while. Republicans managed to fend it off for the moment–but don’t be surprised if it shows up again down the road in some form.
The provision would have drastically widened the scope of lawsuits against what are known as Medicare third-party defendants…
…The language slipped into the health bill would greatly expand the scope of these suits against third parties, while doing something entirely new, namely allow freelance lawyers to file them on behalf of the government–without asking permission–and collect rich bounties if they manage thereby to extract money from the defendants. Lawyers will recognize this as a “qui tam†procedure, of the sort that has led to a growing body of litigation filed by freelance bounty hunters against universities, defense contractors and others alleged to have overcharged the government.
It gets worse. Language in the bill would permit the lawyers to file at least some sorts of Medicare recovery actions based on "any relevant evidence, including but not limited to relevant statistical or epidemiological evidence, or by other similarly reliable means." This reads very much as if an attempt is being made to lay the groundwork for claims against new classes of defendants who might not be proved liable in an individual case but are responsible in a "statistical" sense. The best known such controversies are over whether suppliers of products such as alcohol, calorie-laden foods or guns should be compelled to pay compensation for society-wide patterns of illness or injury.
