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Rick Shapiro
Rick Shapiro
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Federal Efforts to Cap Medical Malpractice Awards Stall

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A rare win appears within reach for the “forgotten people” who stand to lose so much if Republicans in Congress succeed in completely repealing and replacing the Affordable Care Act (ACA). H.R. 1215, introduced as companion legislation to the American Health Care Act (AHCA) and with the intent of limiting the ability of medical malpractice victims to succeed with their claims and receive adequate compensation, has few supporters in the legislature or across the health care industry.

Harming Victims to Help Insurers

Understanding why the likely legislative death of the misleadingly named Protecting Access to Care Act of 2017 merits celebration requires recounting some history. So-called “tort reform” became a cornerstone of conservative lawmakers’ efforts to reduce medical costs during the 1980s. The three essential components of tort reform in health policy are

  • Making it more difficult for injured patients or the family members of deceased patients to file medical malpractice insurance claims and lawsuits.
  • Limiting the types of evidence and expert testimony plaintiffs in medical malpractice cases can present to support their claims.
  • Capping the amounts of money medical malpractice victims can receive for pain and suffering (i.e., noneconomic damages), punitive damages and/or total damages.

https://www.flickr.com/photos/60881556@N05/5554418482/The purported goal is to lower spending on medical treatment by making lawsuits less likely and settlements less expensive. None of those outcomes occurred, but plenty of patients and families have been denied compensation. Insurance companies have also consistently raised their rates for malpractice coverage despite facing little to no increased financial liability.

Virginia, where my medical malpractice attorney practice maintains its main offices, wrote each of the medical malpractice tort reform principles into its tort law statutes. Most significantly, the commonwealth restricted the grounds state courts recognize as valid for seeking medical malpractice damages and capped total awards to successful plaintiffs. Punitive damages — noncriminal punishments for reckless or careless doctors, nurses, pharmacists, dentists, hospitals, clinics or other health care facilities — cannot exceed $350,000. Awards that represent compensation for economic losses and noneconomic harms currently range from $2.1 million to $2.25 million, depending on when the case was accepted by a court.

Second Thoughts

Thirty-four states currently have some version of medical malpractice tort reform written into their civil litigation laws. Federal tort reform has failed to pass, in part because there is a strong argument to make that it violates citizens’ Seventh Amendment rights to hold people and organizations who harm them accountable.

H.R. 1215, introduced on Feb. 24, 2017, proposes the following:

  • Setting a 3-year statute of limitations for medical malpractice claims arising from care paid for by Medicare, Medicaid or an insurance policy subsidized in any way through a law like the ACA or AHCA.
  • Capping noneconomic damages for medical malpractice victims at $250,000 unless the state where the case was decided imposes a different cap.
  • Immunizing prescribers and pharmacists from liability in most kinds of dangerous drug lawsuits.

If passed, the bill would be linked to the AHCA. The likelihood of that happening seems vanishingly small, however.

Writing for the Huffington Post on May 30, 2017, Joanne Doroshow noted that the bill barely got voted out of a Republican-led subcommittee and lacks backers from provider and hospital groups that lobbied hard in past decades for state-based tort reform.

The executive director of the Center for Justice & Democracy at New York Law School wrote that the main reason so few love H.R. 1215 is that it promises no savings or efficiencies but does set the stage for severely hamstringing health care providers’ professional practice. Making a mockery of their purported mission to rollback federal oversight, some congressional Republicans and members of the Trump administration want to impose strict regulations.

Doroshow explained how this could work by pointing to a regulatory framework for the bill envisioned in the proposed 2018 federal budget:

One idea goes like this: the federal government selects “one size fits all” clinical practice guidelines (written by medical societies) for the treatment of every medical condition. Doctors receive legal immunity if they follow a federal guideline — even if they believe the guideline is wrong for the patient and causes serious harm. If the patient then seeks recourse, they must plead their case before a biased medical industry tribunal. Families wanting to have their case heard in court would face nearly impossible obstacles.

Patients and Families Remain at Risk

The AHCA, as voted out of the U.S. House of Representatives, does not include medical malpractice tort reform language. H.R. 1215 seems doomed. But a small group of Republican senators continue clinging to the myth that limiting access to courts and capping damages awards to people harmed by negligent or reckless health care practices constitutes good policy.

For example, Texas Sen. Ted Cruz told the Washington Post on May 11, 2017, that “he has written an amendment to reward states with a 1 percent bonus to their federal Medicaid matching funds if they cap punitive damages for medical malpractice actions.” He expressed his intention to “incentivize” states to, in plain language, limit victims’ rights.

While tort reform is on life support in Washington, DC, the unconstitutional and harmful idea is far from dead. As a U.S. citizen even more than a Virginia medical malpractice attorney, I urge everyone in a position to do so to speak out against proposals like H.R. 1215 and Cruz’s AHCA amendment. Victims of negligent and recklessness deserve fair compensation, not misguided money-saving policies.

EJL