Medical Liability Damages Cap Approved in Narrow House Panel Vote

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By Sara Hansard

Damages for medical injuries that aren’t based on economic losses would be capped at $250,000 under legislation approved Feb. 28 by the House Judiciary Committee.

The Protecting Access to Care Act (H.R. 1215), sponsored by Rep. Steve King (R-Iowa), was approved by a vote of 18-17 with Rep. Ted Poe (R-Texas) the only Republican to oppose the bill. All Democrats voted against the bill, on which the committee didn’t hold hearings.

Republicans have long called for medical tort reform, arguing it would help lower health-care costs because doctors wouldn’t have to practice defensive medicine by ordering more tests and procedures than necessary. Detractors of tort reform say it wouldn’t reduce health-care costs meaningfully.

Democrats charged that the bill would limit the ability of victims of medical malpractice to be made whole for damages such as pain and suffering, and would trample on the rights of states, which traditionally have governed malpractice law.

Chances of Adoption Slim

Federal medical malpractice liability reform has been talked about for years, but the chances of its adoption are slim, as Democrats generally oppose it, and many Republicans say the issue is one for the states, not the federal government.

A number of amendments introduced by Democrats were defeated along party-line votes. However, one amendment offered by Rep. Hank Johnson Jr. (D-Ga.) initially passed with some Republican support. The amendment would have allowed states to set their own limits on malpractice awards under state constitutional provisions.

Committee Chairman Bob Goodlatte (R-Va.) later called another vote on the amendment, which resulted in a 17-17 tie, with Poe and Rep. Raul Labrador (R-Idaho) supporting the amendment. The tie vote meant the amendment failed to pass.

Lowering Health-Care Costs

The bill is modeled on California’s litigation reform law enacted in the 1970s, which Goodlatte said has “lowered health care costs, and made health care much more accessible to the people of that state.”

The Congressional Budget Office estimated that if the same reforms were applied at the federal level, they would save more than $50 billion over a 10-year period, Goodlatte said. A ballot initiative to raise the damages cap was defeated by a margin of more than 2 to 1 in 2014, he said.

The bill approved Feb. 28 would limit contingency fees lawyers can charge. It also would allow courts to require periodic payments for future damages instead of lump-sum awards, to prevent bankruptcies in which plaintiffs would receive only pennies on the dollar, Goodlatte said.

Pre-Empting Joint and Several Liability

The bill also includes a “fair share” rule, under which damages are allocated fairly in direct proportion to fault, Goodlatte said. That provision would pre-empt joint and several liability laws, which, Rep. Jamie Raskin (D-Md.) said, were in effect in 33 states.

Plaintiffs could receive full economic losses for medical costs, lost wages and other out-of-pocket costs suffered as a result of a health-care injury, Goodlatte said.

Unlike previous medical malpractice tort reform bills, the legislation only applies to claims concerning coverage provided through a federal program, subsidy or tax benefit, “giving it a clear federal nexus,” Goodlatte said.

Federal Interest in Reducing Costs

“Wherever federal policy affects the distribution of health care, there is a clear federal interest in reducing the costs of such federal policies,” Goodlatte said.

Democrats denounced the bill as protecting medical malpractice insurance companies, health-care insurers and large health-care systems at the expense of consumers who may be harmed.

The bill “deeply intrudes on state sovereignty,” committee ranking member John Conyers Jr. (D-Mich.) said.

$250,000 Cap `Unjustifiably Low.’

The $250,000 cap in the bill was set in the 1970s and is “unjustifiably low” in today’s economy, Conyers said.

The “severe limit” on noneconomic damages would have a particularly adverse impact on women, children and the poor, Conyers said.

“These groups are more likely to receive noneconomic damages in health care cases because they are less able to establish lost wages and other economic losses,” Conyers said.

Drugs, Devices

The bill “unjustifiably provides blanket immunity for dispensing a defective or dangerous pharmaceutical or medical device,” Conyers said.

The provision has the potential to indirectly shield pharmaceutical and device manufacturers, who could argue that a plaintiff’s injury could be blamed on a provider’s negligence, Conyers said.

A trial lawyer group issued a release Feb. 24 criticizing the bill. The legislation “would prevent patients and nursing home residents injured or killed by a health care provider from ever seeking justice in court,” the American Association for Justice said. The organization said a floor vote is expected on the bill in early March.

To contact the reporter on this story: Sara Hansard in Washington at shansard@bna.com

To contact the editor responsible for this story: Kendra Casey Plank at kcasey@bna.com

For More Information

The Protecting Access to Care Act (H.R. 1215) is at https://judiciary.house.gov/wp-content/uploads/2017/02/HR-1215.pdf.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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