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