By a vote of 218 to 210, the US House of Representatives narrowly passed HR 1215 entitled “Protecting Access to Care Act of 2017” but it does not actually protect access to care. This bill establishes provisions governing health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through a subsidy or tax benefit. The bill has a number of objectionable provisions but perhaps the most objectionable and unfair is that it limits noneconomic damages to only $250,000. Juries will not be informed of this limitation.
This GOP Bill Undermines the Ability of the Victims of Medical Malpractice and the Victims of Defective or Dangerous Medical Products to Be Made Whole.
Despite the fact that Republicans often refer to H.R. 1215 as a “medical malpractice” bill, the Republican bill applies its provisions not simply to “medical malpractice” cases but to all “health care lawsuits.” For example, in addition to medical malpractice, the bill’s provisions apply to cases involving for-profit nursing homes and long-term care facilities. So no matter how much an innocent victim of medical malpractice or nursing home abuse suffers – including pain and suffering, disability, disfigurement, loss of limb or lives – this legislation limits the recovery to only $250,000.
Supporters argue that such limitation is necessary due to skyrocketing malpractice insurance premiums which, they argue, increase health care costs. However, the truth is that the GOP bill is outdated; no evidence of a malpractice insurance “crisis” today. Medical malpractice liability insurance has historically attracted the attention of Congress during industry “crisis” periods, which occurred during the mid-1970s and mid-1980s. These periods were marked by significant increases of insurance premiums and difficulties in finding malpractice insurance for certain medical specialties. However, all available evidence shows that the malpractice insurance market is not in crisis today. Indeed, according to a 2016 article in a medical malpractice insurance industry trade publication, “the medical malpractice insurance industry is continuing its unprecedented run of consecutive profitable years in 2016.” That same publication, describing a survey of medical professional liability insurance rates, noted that for the “vast majority (75 percent) of [medical malpractice] insurers in the survey, rates have remained flat between 2015 and 2016.” This is just another measure to deprive injured people and families from being fairly and reasonably compensated for the effects of medical and other health care negligence.
It never ceases to amaze me that in business litigation, one company can sue another for a trademark infringement or contract dispute, for example, and reap millions or even billions of dollars in compensation and other than noteworthy mention of the result nobody bats an eye (even though you can reasonably expect that the costs will be passed onto consumers). However, if an innocent surgical patient, for example, suffers the loss of sight, the loss of a limb, or is horribly burned from a defective medical device, members supporting such measures want to limit that injured person and his family’s ability to receive just compensation. Perfect justice would be turning back the hands of time and preventing the injury from ever happening. Unfortunately, since we cannot access perfect justice, we are limited to monetary compensation. Such compensation can help families put their lives back together from catastrophic injuries.
With such questionable support, patient advocates and all of us who fight to uphold the 7th amendment (the right to a trial by jury) feel hopeful that Senate Democrats and Republicans will vote against the bill. While the date of a Senate vote is not yet known, I cannot stress enough how important it is to contact your Senators to voice your opposition to the bill.