House Passes Tort “Reform” Measure That Would Slash Recovery By Medical Malpractice Victims

The House of Representatives has passed a controversial tort reform bill that contains serious flaws that would limit recovery of people harmed or kill by acts of malpractice. H.R. 5, the “Protecting Access to Healthcare Act” would impose a cap of $250,000 that would severely cut the damages of victims and make it far more difficult for such victims to secure contingency counsel. THe bill passed 223 to 181 with seven Democrats joining Republicans to pass the bill.

The American Bar Association has objected to the provision.
In addition to the cap on health care suits, the bill would allow the reduction of contingency fees and preempt state laws on joint and several liability. It would also abolish the collateral-source rule, barring evidence that a plaintiff has received insurance proceeds or other benefits from third parties.

I have previously discussed members who claim to be pro-federalism routinely vote to deny states the right to establish their own rules in areas like tort, family law, and criminal law. Tort law is a core area of state authority and this is an example of how Congress superimposes its own preferences on the states.

I have been a long critic of caps, which are set so low that they discourage attorneys from taking these cases on a contingency basis. We recently saw how such caps deny victims recovery in cases like the Virginia Tech massacre case.

The bill contains the following provision:

In anyhealth care lawsuit, the amount of noneconomic damages, if available, may be as much as $250,000, regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury.

The bill also expressly preempts states with opposing approaches on the use of joint and several liability.

I have helped families who have found no lawyer willing to take meritorious cases because of state caps. In the end, however, members have to address their continue relativistic approach to federalism. The House seeks to set aside decades of common law precedent without a full consideration of the constitutional and torts implications of this act. These provisions are collateral to the purpose of the bill, which is to eliminate Independent Payment Advisory Board (IPAB). The added provision are a classic victory of the powerful medical lobby in Washington. It would impose an arbitrary figure to slash damages that would only be imposed after a finding of a jury, review by a trial judge, and often review by an appellate panel. The bill seeks to trump the views of states with pro-patient laws.

Here is the ABA letter: ABA Letter

39 thoughts on “House Passes Tort “Reform” Measure That Would Slash Recovery By Medical Malpractice Victims”

  1. JD:

    “What will everyone do when there are no doctors willing to work because of the malpractice insurance premiums?”


    To paraphrase Jefferson you are propositioning something that never was and never will be. Here’s why: medical mal practice premiums are among the most lucrative for carriers since they rarely pay out. (Only 20% of claims nationwide are sucessful) Would you kill the goose that laid the golden egg?

    Come on, JD, you’re better than Chicken Little who also drank the Kool-ade.

  2. Very interesting responses.

    What will everyone do when there are no doctors willing to work because of the malpractice insurance premiums?

  3. We could go into details: the carotid (my favorite), the wife (how did she know?), how the lung circuit was involved,etc. But won’t belabor.
    (You understand am medical freak) BFN

  4. I apologize in advance for being to lazy to provide a link. I recall in the past several years reading article(s) (Rolling Stone, Harper’s, Boys’ Life??) that in the states where there have been caps imposed in medmal cases, there has been zero decrease in doctors’ insurance rates (in some cases there have been increases)

    W’s clap-trap argument, “Too many OBGYN’s can’t practice their love with woman…etc.”, has been used to guilt legislators, in the name of protecting doctors, to impose caps. It’s pure bull-honkey. The insurance companies are the only ones who benefit. I hope this doesn’t turn into another case of Democrats on the hill trying to look tough and business savy when they don’t know their asses from their elbows. Does anyone ever read anything besides a f_ _king menu in DC??????

  5. Nino, please choke on a meatball. I want to see the look of terror on your pudgy face as you gasp for the air that won’t come. And when a liberal takes pity and gives you the Heimlich because conservatives want you to be personally responsible and won’t lift a fist into your copious gut, I want you to have an epiphany about people taking care of each other.

  6. In Indiana you are only worth what you make. If someone on Social Security and a pension dies from malpractice, the family can only sue for that amount of damages. For the Doctor, it’s best if his mistakes leads to death rather than mere injury.

  7. Mike S.

    Permit a joke, since I share to some degree:
    “—-I also have personally been a victim of medical malpractice, but was lucky enough to have no lasting damage.”,,,,

    The first transplant was installed backwards, but they had a reserve to replace that with (Your case)
    The mechanical valve was defective in function (45% backflow), so chief surg said let’s not re-op. It corrected after 11 hours, wife was glad. He came by on day one to tell me in two sentences of his deed, and looked proud of his “saving” my life. I was still out of it with painkillers. Last I saw of him. (My case)

    Medical tort cases must be capped at null here. Never a media item so must be no money.

    You pray before an operation that they are sober, clean, and competent. Usually they are. Perhaps better than there.

    1. ID707,
      I hear you. In my case it was an intern inserting a blood line into my carotid incorrectly after my heart transplant. This caused a blood clot in my lungs and required a serious lung operation. Though done with supervision, it was the 1st time for the intern and the line was an unnecessary precaution. I had been home for 3 days and due to lack of oxygen was in a semi-psychotic state. My wife’s quick thinking saved my life since I wasn’t aware that I was ill.

  8. Aw, come on, Mike! Tell us how you really feel. 😉

    As someone who personally got screwed by damage caps – in a situation much like anon’s ex – I’ll back you to the Gates of Hell on the “whore” call, Mike. Courts in equity require equitable solutions and capping damages so low that they won’t cover the expenses of most malpractice litigation is simply unconscionable and contrary to the interest of establishing justice. Damage caps in general are simply wrong. They provide industry with a known price tag for their wrongdoing that can easily be budgeted for, thus removing any real putative effect of damages in the first place. In medical malpractice? They are doubly vile. Although that may be my personal bias showing through, I’m pretty sure allowing the medical profession to ruin someone’s life twice is simply unjust and wrong.

    1. Gene,
      I also have personally been a victim of medical malpractice, but was lucky enough to have no lasting damage. I remember being taught about the concept of equity in my unsuccessful sojourn in law school. It seems to have slipped the mind of legislators, primarily conservatives.

  9. Anyone who would vote for this is a disgusting whore. There is no ideological theory that would justify this other than “the divine right of kings (and nobility)”.

  10. It has been ocassionally noted by some that true tort reform in the health industry requries a Faustian Bargain. That is, if there are caps on the amount a victim of medical malpractice can obtain from the doctor, clinic, hospital or Indian Chief then there must be full health coverage for the crippled person, to whatever extent necessary to fix, aide, comfort the person for life. That would mean a Canadian system for the victims of medical malpractice. A second component of tort reform in health care would require caps on the costs of medical treatment for a malpractice victim. No $30 per pill aspirins. It sounds brutal to the health care industry doesnt it. Or does it.
    There is no semblance of such a bargain in this proposed federal statutory law which intrudes on State law. What about States Rights? What kind of feds are these modern day RepubliCons?

  11. Barack Obama’s lead over [Mitt] Romney is attributable in large part to his wide advantage among women, younger voters, and nonwhites. Women favor Obama over Romney by 20 points – virtually unchanged from a month ago – while men are divided almost evenly (49% Obama, 46% Romney). This gender gap is particularly wide among voters under age 50. Women ages 18-49 favor Obama over Romney by nearly two-to-one (64% to 33%), while men the same age are split (50% Obama, 46% Romney. Idealist, here are some statistics for you.

  12. Woosty,
    I and others have intimated the possibility of a private “strike”, but of course it is here the pressure can be applied. Doing without home service is no problem for bankers and congressmen.
    The only problem is the targets here seem better organized than the sex workers.
    Paricularrly loved the last line.

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