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
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Key Points: | - On Wednesday, the House will consider H.R. 1215, Undermining Patients' Access to Safe and Affordable Health Care. This damaging GOP bill would trample on states' rights and also deny victims of medical malpractice and defective medical products the ability to be made whole and to hold wrongdoers accountable. On February 28, the Judiciary Committee reported the bill by a virtually party-line vote of 18 to 17 – with 18 Republicans voting YEA and all Democrats and one Republican voting NAY. Democratic Members are urged to vote NO on the bill.
- First, this GOP bill tramples on states' sovereignty. Tort law is an area historically developed and shaped by state courts and legislatures. Yet this GOP bill is one-size-fits-all bill that imposes federal rules on all 50 states for cases involving medical malpractice, product liability, and related topics. This bill preempts several areas of state tort law – including state constitutional provisions and state Supreme Court decisions that prohibit caps on noneconomic damages. Worse still, this bill is "one-way preemptive," meaning that it generally supersedes only state laws that are more favorable to victims, but not those that give greater protection for wrongdoers. In opposing H.R. 1215, the National Conference of State Legislatures notes that the bill removes "states' well-established and traditional sovereignty in the area of medical malpractice that has been in place for decades."
- Going well beyond being a "medical malpractice" bill, the GOP bill also has broad scope – providing, for example, new protections for-profit nursing homes and long-term care facilities. 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. In any case involving these defendants, this bill limits the amount of noneconomic damages to $250,000. For example, in California, there is currently a cap of $250,000 on noneconomic damages for malpractice cases against doctors and hospitals. However, H.R. 1215 would also force California to impose a cap on damages of $250,000 in such cases as actions against for-profit nursing home corporations for nursing home abuse and neglect.
- The GOP bill also provides a complete liability shield for health care providers in product liability cases who provide defective or dangerous prescription drugs or medical devices. The bill threatens to undermine the ability of victims of defective or dangerous medical products, including prescription drugs and medical devices, to be made whole. It provides a complete liability shield for health care providers in product liability and class action cases who provide defective or dangerous products to a plaintiff if such product was approved, licensed or cleared by the FDA. This excessively broad liability shield for health care providers – which, effectively, could also provide legal protection for drug and device manufacturers – is both unjust and unjustifiable.
- The GOP bill makes it more difficult for victims of, for example, medical malpractice and nursing home abuse to receive just compensation. The bill takes several steps to make it more difficult for victims to receive just compensation, including:
- Sets a permanent across-the-board very low cap on non-economic damages of $250,000: The bill imposes an extremely low cap on $250,000 – first set in a California law in 1976 – on noneconomic damages such as those for pain and suffering. As a result of such a restrictive cap, many victims injured as a result of medical malpractice or of defective medical products will be denied full compensation. Women, children, the poor, the elderly, and the disabled will be particularly hurt by H.R. 1215's cap on noneconomic damages because they may have less substantial amounts of lost wages or other kinds of economic loss.
- Eliminates joint and several liability: The bill eliminates joint and several liability for both economic and noneconomic damages. Joint liability ensures that injured patients are fully compensated for their losses by allowing one lawsuit to be brought against multiple defendants and having the defendants apportion fault among them. By eliminating joint and several liability, the bill threatens the ability of plaintiffs to be made whole.
- Imposes an excessively short statute of limitations period: Imposes a three-year statute of limitations for medical malpractice claims, which is excessively short and more restrictive than a majority of state laws. For example, a patient who was infected with HIV through a negligent blood transfusion may not discover his injury until more than three years after the date of the injury. The impact of a short statute of limitations is to cut off meritorious claims.
- Makes it harder for victims to obtain adequate legal representation: The bill sets tight sliding-scale limits on the contingency fees that lawyers in health care lawsuits can charge. These limits are clearly intended to dis-incentivize lawyers from taking health care cases and thereby make it harder for plaintiffs in health care cases to have their day in court.
- 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."
- Finally, the GOP bill is opposed by the National Conference of State Legislatures, the American Bar Association, and numerous consumer, seniors, labor, disability, legal, and veterans groups.
Opposition to H.R. 1215:
National Conference of State Legislatures
On behalf of the National Conference of State Legislatures (NCSL), we write to express opposition to the consideration of H.R. 1215, the ‘Protecting Access to Care Act of 2017.' This bill will preempt state laws that do not meet federally mandated standards, thereby removing states' well established and traditional sovereignty in the area of medical malpractice that have been in place for decades. … Substantively, H.R. 1215 is fundamentally flawed. Medical malpractice, product liability and other areas of tort reform are areas of law that have been traditionally and successfully regulated by the states …. In the past two decades, all states have explored various aspects of medical malpractice and products liability and chosen various means for remedying identified problems. Over the past several years, states have continued to revise and refine their medical malpractice laws and procedures. H.R. 1215 is rife with federal preemption notwithstanding the ‘state flexibility' language riddled throughout the bill. This language is deceptive and only grants ‘flexibility' to states with more restrictive provisions than those in H.R. 1215. [Letter, 3/1/17]
American Bar Association
On behalf of the American Bar Association, … I am writing to express our opposition to H.R. 1215, the ‘Protecting Access to Care Act of 2017.' For over 200 years, the authority to determine medical liability law has rested in the states. This system, which grants each state the autonomy to regulate the resolution of medical liability actions within its own borders, is a hallmark of our American justice system. The states also regulate the insurance industry. Because of the roles they have played, the states are the repositories of experience and expertise in these matters. Therefore, the ABA believes that Congress should not substitute its judgment, as is proposed in H.R. 1215, for the systems that have evolved in each state over time. [Letter, 6/12/17]
A Coalition of More Than 50 Groups, Including Consumer Federation of America, Consumer Action, National Consumers League, American Association for Justice, National Disability Rights Network, National Women's Health Network, AFL-CIO,, AFSCME, AFT, Alliance for Retired Americans, and Center for Medicare Advocacy
The undersigned consumer, health, labor, legal and public interest groups strongly oppose H.R. 1215, the "Protecting Access to Care Act of 2017." This bill would limit the legal rights of injured patients and families of those killed by negligent health care. The bill's sweeping scope covers not only cases involving medical malpractice, but also cases involving unsafe drugs and nursing home abuse and neglect. Even if H.R. 1215 applied only to doctors and hospitals, recent studies clearly establish that its provisions would lead to more deaths and injuries, and increased health care costs due to a "broad relaxation of care." Add to this nursing home and pharmaceutical industry liability limitations, significantly weakening incentives for these industries to act safely, and untold numbers of additional death, injuries, and costs are inevitable, and unacceptable. … Congress should focus on improving patient safety and reducing deaths and injuries, not insulating negligent providers from accountability, harming patients and saddling taxpayers with the cost, as H.R. 1215 would do. [Letter, 6/12/17]
Consumers Union
Consumers Union … urges you not to support H.R. 1215, the so-called "Protecting Access to Care Act of 2017." We are concerned that this bill would put patient safety at higher risk, by significantly undermining the accountability of those who provide patients with health care. … The definitions of H.R. 1215 are written so broadly as to sweep in not only doctors and other medical professionals, hospitals and clinics, but also every entity that contributes in any way to making any health care product or service available, including pharmaceutical manufacturers, health device and product manufacturers, insurance companies, … among others H.R. 1215 will do nothing to strengthen protections for patients. It goes in the opposite direction, by excusing the health care industry from accountability for carelessness and even intentional abuse, and shifting the burden for shouldering the consequences of what can be devastating injury to the injured patients, their families, their employers, their insurance companies, and taxpayers. [Letter, 6/13/17]
Coalition of Military and Veteran Service Organizations, Including Vietnam Veterans of America, Non
Commissioned Officers Association of the United States of America, Marine Corps League, Naval Enlisted Reserve Association, and The Retired Enlisted Association
We, the undersigned military and veteran service organizations, oppose H.R. 1215, the misnamed ‘Protecting Access to Care Act of 2017.' Rather than providing for additional health care protections to our veterans and military families, the bill would limit their ability to hold health care providers, drug manufacturers and medical products providers accountable for pain, suffering, and death that result from substandard care, preventable medical errors, and defective drugs and devices. Numerous veterans and military families would be hurt by this bill. .. This broad overreaching federal law should not dictate recovery for every single veteran and military family in all 50 states. Those decisions should be left to the states and the federal government should never be in the position of providing less recovery and aid to veterans and military families. [Letter, 6/12/17]