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The United States House of Representatives passed two bills in March intending to limit medical malpractice lawsuits. The Innocent Party Protection Act would transfer some lawsuits to federal courts from plaintiff-friendly state courts. The Protecting Access to Care Act (H.R. 1215), would restrict medical malpractice awards to $250,000 for noneconomic damages in medical malpractice, nursing home abuse, prescription and over-the-counter (OTC) drug and medical device lawsuits, including pain and suffering, permanent disfigurement, or other serious disabilities that do not restrict the ability to work. Current law contains no caps on these awards.
The summary of H.R. 1215 on the congress.gov website is as follows:
Protecting Access to Care Act of 2017
This bill establishes provisions governing health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through a subsidy or tax benefit. The bill does not preempt certain state laws and federal vaccine injury laws and rules.
The statute of limitations is three years after the injury or one year after the claimant discovers the injury, whichever occurs first. For a minor, the statute of limitations is three years after the injury, except for a minor under six years old, for whom it is three years after the injury, one year after discovery of the injury, or the minor’s eighth birthday, whichever occurs later. These limitations are tolled under certain circumstances.
Noneconomic damages are limited to $250,000. Juries may not be informed of this limitation. Parties are liable for the amount of damages directly proportional to their responsibility. These provisions do not preempt state laws that specify a particular monetary amount of damages.
Courts must supervise the payment of damages and may restrict attorney contingency fees. The bill sets limits on contingency fees.
Certain evidence regarding collateral source benefits (e.g., insurance payments) may be introduced in lawsuits involving injury or wrongful death. Providers of collateral source benefits may not recover any amount from the claimant in such a lawsuit. These provisions do not apply if Medicare is a secondary payer or there is third party liability for Medicaid services.
The bill provides for periodic payment of future damage awards.
A health care provider who prescribes, or dispenses pursuant to a prescription, a medical product approved by the Food and Drug Administration may not be a party to a product liability lawsuit or a class action lawsuit regarding the medical product.”
The full text of the bill is located here: www.congress.gov/bill/115th-congress/house-bill/1215/text
Each year in the United States, about 440,000 patients die from preventable medical errors. Medical error is the third leading cause of death, behind cancer and heart disease, yet medical malpractice lawsuits account for a mere one-half of one percent of health care costs according to the Congressional Budget Office. Medical malpractice occurs when a patient is harmed by a doctor or other medical professional who fails to competently perform his or her medical duties. Though the rules about medical malpractice vary from state to state, there are general principals and broad categories of rules that apply to most medical malpractice lawsuits.
Public Policy Polling (PPP) recently released data from phone polls conducted in late March on the topic of H.R. 1215. PPP asked the same set of questions to 500-700 registered voters in seven Republican (red) and purple states (those that have voted both Republican & Democratic in the past several elections). Polling only red & purple states was intentional, as Republicans have traditionally leaned towards tort reform, and limiting medical malpractice and nursing home abuse lawsuits in favor of protecting big corporations.
PPP found that in the polled states of Florida, Georgia, Pennsylvania, Texas, Utah, Alabama and Arizona, support for H.R. 1215 was virtually non-existent, with over 60% of polled citizens in every state disagreeing with the bill. The large percentage of voters in each state that believed nursing homes should be held accountable if acts of negligence caused the injury or death of a loved one was surprisingly high as well.