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. Are they in DF, or?

    In my business visit, showing at a conference, my Swedish host said to avoid the parks, even in the daytime, as the police liked to rob people there.
    I did see the Davis Cup doubles match in a lovely tree-shaded small stadium..
    It ended in cushion casting cascade from the Mexicans. The USA team provoked them of course. You can guess how. I think McEnroe and Peter Fleming (?) were involved.

    That was in 1980, on my round the world tour doing PR

    And we think we have drug problems, or what’s your take on causes.
    Swedes go to Spain, but it’s mostly the rich who do.

  2. idealist, Sure, you can go to Mexico. I know a few people that have retired there. The crime is horrible there, and the police carry automatic assault weapons. The class divisions are very visible. Does not look too attractive to me.

  3. Iraq and Afghanistan, being familiar with our policies of democratic rule, will give you priority in your asylum applications.
    Their understanding of humanitarian reasons perhaps exceeds ours.
    Just tell them you voted for George.
    They’ll swiftly welcome you with thrown shoes. A long tradition since centuries.

  4. If Obama loses and the R’s take the Senate, then you can certainly be accepted as political asylees in most nations. If you can get away, of course.

    Canada may close her borders soon if it gets worse. And it’s a long swim to Europe. Do you think Mexico will accept you?

  5. Blouise, The republicans want to turn the whole country into Texas. This would not have happened under Pelosi’s watch. You are right though that it will get stopped in the Senate. If Obama loses and the r’s take the senate, the provision will prevail.

  6. At least Congress is doing what it can to make negligent mistakes that cripple another human being for life affordable.

  7. BettyKath,
    thanks, invigorating in Scalia’s demonstrated stupidity.
    I shan’t bait by saying who it reminds me of as to the reasoning:
    “I am right and I know I am right”
    , etc as long as needed, But shall we say it concerns “stand your ground”.
    But it makes me ill and frustrated—-but then that’s not a crime on the one who causes that.
    And who proposed her for the court? Have been away and don’t know much of your last 40 years history.
    Certainly worth discussing. I wonder how she handles requests from her corporated sponsors?

  8. I read an AMA report suggesting that liability and “liability adverse” treatment adds 1% to the cost of healthcare in the US.

    Wanna guess the real killer? It was Insurance overhead at something like 36%. That was the cost of added staff, delayed payments extra paperwork etc. to deal with the mine field of insurance providers.

    Put lawyers are easy to hate & it makes big companies happy so we are screwed.

  9. Another privileged Republican class granted impugnity to harm the public with no threat of accountability. Perhaps the Senate or the President will think better of it.

  10. This is off topic and maybe it was addressed before I learned of this site but I’d like to read some comments.

    Antonin Scalia: Torture Is Not “Cruel and Unusual Punishment”
    And Supreme Court Justice Antonin Scalia has publicly claimed that the torture of prisoners does not violate the Eighth Amendment’s ban on “cruel and unusual punishment.” Scalia’s comment came during an interview with Lesley Stahl on CBS’s 60 Minutes.

    Justice Scalia: I don’t like torture. I’m—although defining it is going to be a nice trick. But, I mean, who’s in favor of it? Nobody. And we have a law against torture. But if the—everything that is hateful and odious is not covered by some provision of the Constitution.

    Lesley Stahl: If someone’s in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression, ‘cruel and unusual punishment,’ doesn’t that apply?

    Justice Scalia: “No, no.”

    Stahl: “Cruel and unusual punishment?”

    Justice Scalia: “To the contrary. You think—you think that you would—has anybody ever referred to torture as punishment? I don’t think so.”

    Stahl: “Well, I think if you’re in custody and you have a policeman who’s taken you into custody—”

    Justice Scalia: “And you say he’s punishing you?”

    Stahl: “Sure.”

    Justice Scalia: “What’s he punishing you for? You punish somebody—”

    Stahl: “Well, because he assumes you, one, either committed a crime—”

    Justice Scalia: “No, no.”

    Stahl: “—or that you know something that he wants to know.”

    Justice Scalia: “It’s the latter. And when he’s—when he’s—when he’s hurting you in order to get information from you—”

    Stahl: “Yeah.”

    Justice Scalia: “—you don’t say he’s punishing you. What’s he punishing you for? He’s trying to extract—”

    Stahl: “Because he thinks you’re a terrorist, and he’s going to beat the you-know-what out of you.”

    Justice Scalia: “Anyway, that’s my view. And it happens to be correct.”

  11. This is one small example of what America would look like under a Republican controlled White House and Congress. The only people who would benefit would be the 1% and corporations.

  12. I have been discussing this horrible bill in my blog since it was first proposed over a year ago. My first post on it is available here: My most recent one (which includes links to all the others) is here.

    The bottom line is that the bill attempts to limit the right of victims of medical malpractice to recover for their injuries by making it difficult for them to find representation and by limiting their possible recovery. It also provides protection to pharmaceutical and medical devices companies in cases of injuries caused by defective products.

  13. I doubt it will get through the Senate.

    Just another waste of legislative time to keep the teabaggers happy.

  14. I have found what Professor Turley writes above to be absolutely true in real life.

    My wife (now ex) had a surgeon basically assault her (needlessly extend a very minor consented operation to include performing a major operation she had not consented to, would probably never consent to, and one that had no emergency nature to it) and found in California that with the $250K cap there was almost no one who would take her case.

  15. Damage caps are an anathema to justice and a corporatist corporate subsidy no matter how you try to color it.

  16. oh, I think it is absolutely necessary to further subsidize our fellow persons…the Corportions…by limiting any losses they may become exposed to by thier fiercly greedy behaviours….and our overt vulnerabilities….

    I wish I could post that picture……29210l33133l5l36335l11l11l0l2l0l0l479l1245l5j3j4-1l9l0.frgbld.&bav=on.2,or.r_gc.r_pw.r_qf.,cf.osb&fp=39804fa8ce320266&biw=1311&bih=646

  17. Caps Crap…. ALEC in the shadows……let me sell you a Ford Pinto…. Based upon engineering reports we can sell you more and our liability is limited to this amount….. Our profits should soar….

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