Protecting Access to Care Act - Will it do What it Says it Will Do?

Some states like Florida have enacted statutes that limit non-economic damages that are available to a medical malpractice victim. Those damages aren't so easy for a jury to put a price tag on because they're not quantifiable. They might consist of pain and suffering, loss of a normal life, permanent disability or disfigurement or loss of consortium.

The proposed cap on non-economic damages

Most states don't have non-economic damages award caps in medical negligence cases. For example, Florida has a limit on these damages, and that limit is set at $500,000. Should injuries involve severe non-economic harm caused by catastrophic injuries, total non-economic damages recoverable from all practitioners is limited to $1 million. If proposed federal legislation in the Protecting Access to Care Act is passed, Florida's $500,000 limit would be cut in half, and all states would be limited to a maximum of $250,000 for non-economic damages. That would be a radical change in medical malpractice law that doesn't operate in the best interests of anybody except for the insurance companies. People falling under the purview of the proposed legislation include:

  • Medicare and Medicaid recipients

  • Those receiving benefits under military or veterans health care plans

  • Those who are covered under the Affordable Care Act

Drastic changes in medical malpractice law could be coming

By the time the bill winds itself through the legislative process, other individuals could be affected. It's tort reform again under a different name, but with strong Republican representation in all three branches of government now, the bill might be enacted in one form or another regardless of the rights of the states and the individuals affected by it. On top of the non-economic damages limit, the bill would provide immunity to drug manufacturers and health care providers if patients are harmed by prescription medications that are approved by the Food and Drug Administration. That immunity would apply even if the medication was wrongly prescribed or administered. Other drastic changes in American medical malpractice laws that are contained in the bill include:

  • A federal statute of limitations for those who fall under the purview of the proposed act

  • Repeal of collateral source rules that reduce an insurer's financial exposure

  • Repeal of joint and several liability should a person or entity found liable not be able to pay

  • A prohibition against a severely injured victim receiving a jury award in a lump sum in excess of $50,000

  • Restrictions on attorney fees

  • Non-disclosure of the maximum award allowed to juries

It doesn't really hurt that bad

Patient safety experts at Johns Hopkins University recently studied medical death data covering an eight year span. They concluded that over 250,000 deaths a year in the United States result from medical errors. That would make medical errors the third leading cause of death in the nation behind cancer and heart disease. As per the Congressional Budget Office, medical malpractice lawsuits account for only .050 percent of the total health care costs in the country. On the high end, a Harvard University School of Public Health put that figure at 2.5 percent. California has had a cap on damages in medical malpractice cases for over 40 years now. It has done little or nothing to reduce health care costs or malpractice premiums in that state. Although known as the Protecting Access to Care Act, the proposed federal legislation typically has little or nothing to do with its title or access to health care. Doctors shouldn't expect their malpractice premiums to go down either.

Hitting medical malpractice lawyers where it hurts the most

While operating in favor of the financial interests of insurance companies, the bill pokes medical malpractice attorneys in the wallet with a sharp stick. Agreed upon contingency fees are viewed as a conflict of interest, and courts would be granted the authority to cap contingency fees under any circumstances including trial, settlement, arbitration or mediation. The bill reads that "in no event" shall a contingency fee exceed 40 percent of the first $50,000 derived, 33 percent of the next $50,000, 25 percent of the next $500,000 and 15 percent of anything over $600,000. Of course, the bill overlooks the fact that lawyers might be required to sacrifice and advance $150,000 or more to get a viable medical malpractice case to trial. The client is ultimately liable for those costs, but not many victims of medical malpractice have an extra $150,000 sitting around.

Medical negligence cases are said to be a burden on the health care industry, but with the Congressional Budget Office and Harvard University findings, nothing could be farther from the truth. Only bad health care providers and insurance companies would benefit from the proposed legislation. How much is a baby's growth and development worth after an obstetrical error? How much is a National Honor Society high school student's brain worth after a neurosurgical error? How much is the use of your legs worth after an error by an orthopedic surgeon? Under the proposed legislation, a lifetime of pain, suffering, disfigurement and disability for an ordinary person would only be worth $250,000. You can't buy a house in or around Washington D.C. for that price.

By the way, don't most members of congress get federally assisted health care too?
Posted May 05, 2017
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