Horrible Bill Wending Its Way Through Congress

Urgent Alert - Horrible Bill Wending Its Way Through Congress

Congressman Mike Thompson (D-Napa) is considering co-authoring a horrible congressional bill, the misnamed "Help Efficient, Accessible Low Care Cost Health Care Act", which contains a Medical Injury Compensation Reform Act (MICRA) cap.

Please contact him TODAY and ask him not to co-author the proposal. Ask to speak to his staff person working on legal issues or leave a specific message.

His Washington, DC number is:
202-225-3311, fax is 202-225-4335.
In California call:
707-226-9898, fax 707-251-9800.
His e-mail address is: M.Thompson@mail.house.gov.

While some doctors may be experiencing difficulty in obtaining medical malpractice insurance since the St. Paul Insurance Company made its decision to drop its medical malpractice line, so-called "tort reform" is not the answer.

Caps on damages would not decrease premium costs or increase the availability of medical malpractice insurance. In fact, California, which limited non-economic damages in medical malpractice cases to $250,000 as long ago as 1974, has medical malpractice premiums that are 19 percent higher than the countrywide average.

Indeed, even the American Insurance Association (AIA), a major insurance industry trade group, says lawmakers who enact "tort reform" should not expect insurance rates to drop. Severe limitations on medical malpractice remedies only hurt those patients with the most debilitating injuries.

The proposed Help Efficient, Accessible Low Cost Health Care Act will severely limit the ability of patients and other health care consumers to hold health care and medical products providers accountable. Members of Congress should not cosponsor legislation that contains the following provisions:

• Not just medical malpractice, but also product liability and insurance claim reform The bill applies to medical malpractice and medical products claims. If the proponents were truly concerned about an insurance crisis facing doctors, why does this bill cover product liability claims against pharmaceutical and medical device manufacturers, and civil actions against HMOs, and insurers?
• Reduced statute of limitations. The legislation reduces the amount of time an injured patient has to file a lawsuit to one year from the date the injury was discovered or should have been discovered, but not later than three years after the date of injury. This statute of limitations, which is much more restrictive than a majority of state laws, would cut off meritorious claims involving diseases with long incubation periods. Thus, a person who contracted HIV through a negligent transfusion but learned of the disease more than five years after the transfusion would be barred from filing a claim.
• An arbitrary and discriminatory $250,000 cap on non-economic damages. The bill limits non-economic damages to $250,000 in the aggregate, regardless of the number of parties against whom the action is brought. Non-economic damages compensate patients for very real injuries*such as the loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain and permanent and severe disfigurement. They also compensate for the loss of a child or a spouse. These are very real damages, and juries are able to calculate them fairly. Caps on non-economic damages disproportionately affect women, children, the elderly, the disabled, and others who may not have substantial economic loss (i.e., lost wages or salary).
• Elimination of joint liability for economic and non-economic damages. The bill completely eliminates joint liability, thereby upending the law in many states. Under joint liability, injured patients are compensated fully for their loss. Joint liability enables an individual to bring one lawsuit against the entities responsible for practicing unsafe medicine or manufacturing a dangerous, defective product and have the defendants apportion fault among themselves, if the jury finds for the plaintiff. As between an injured patient and multiple negligent medical providers, our civil justice system has determined that it is the patient who deserves the greatest measure of protection.
• Severe restrictions on contingent fees. The bill gives the court power to restrict plaintiff's attorney fees regardless of whether recovery is by judgment, settlement, or any form of alternative dispute resolution. The bill specifies that contingent fees, regardless of the number of plaintiffs, may not exceed: (1) 40% of the first $50,000 recovered; (2) 33a% of the next $50,000 recovered; (3) 25% of the next $500,000 recovered; and (4) 15% of any recovery in excess of $600,000. It is unfair to restrict plaintiff's attorney fees when defendants have no such restrictions. Under the contingent fee system, lawyers are paid only if they are successful, and thus, plaintiffs' attorneys have a built-in incentive to accept the most meritorious cases.
• A confusing collateral source rule. At a minimum, the legislation gives defendants in medical malpractice and medical product liability cases an absolute right to introduce evidence of "collateral source" benefits. Whether it creates an offset and what it does to subrogation rights appears to be an unresolved issue.
• Severe restrictions on punitive damages. The bill provides that punitive damages may only be awarded if the plaintiff proves by an impossibly heightened standard of clear and convincing evidence that (1) the defendant intended to injure the plaintiff for a reason unrelated to the provision of health care services or (2) the defendant understood the plaintiff was substantially certain to suffer unnecessary injury, yet deliberately failed to avoid such injury. The bill does not create punitive damages in those states that don't recognize them. The bill further limits punitive damages to two times the amount of economic damages or $250,000, whichever is greater.
• Heightened pleading standards for punitive damages;. Punitive damages may not be sought by the plaintiff initially. At the court's discretion, a plaintiff may be allowed to file an amended pleading for punitive damages only after a finding by that court that there is a substantial probability that plaintiff will prevail.
• Immunity from punitive damages in product liability cases. The bill completely immunizes manufacturers of drugs and devices that are approved by the FDA from punitive damages. The bill also extends immunity to the manufacturers of drugs and devices that are not FDA-approved, yet are "generally recognized as safe and effective." Finally, the bill immunizes the manufacturer or seller of drugs from punitive damages for packaging or labeling defects. These broad-based immunities completely undermine patient safety by eliminating the deterrent effect of punitive damages and have no relation to issues regarding medical malpractice.
• Periodic payments of all future damages punishes meritorious plaintiffs;. Allowing all future damages over $50,000 to be paid periodically leaves those injured by malpractice and unsafe products vulnerable and undercompensated while large insurance companies reap the interest benefits of a plaintiff's jury award.
• Mandatory binding arbitration. The bill allows any provider of health care services or medical products to legally bind an injured patient to resolve a subsequent dispute through mandatory binding arbitration. Patients in urgent need of medical care should not be duped into signing away their constitutional rights to a Seventh Amendment jury trial. Further, such contracts are inherently unfair, particularly those that stipulate that the health care or medical products provider has the right to select the arbitrator or those that shift the cost of arbitration to the injured patient.
• Restrictive early offer and recovery procedure. The bill allows states to establish a system which allows defendants to offer an injured patient compensation for "reasonable" economic damages. If the patient disputes the offer, the dispute must be resolved using mandatory binding arbitration. If that patient rejects an offer of economic damages, the patient may prevail in state court only if he or she proves each element of the case beyond a reasonable doubt, a criminal standard, and establishes that the defendant was grossly negligent.
• Mandated alternative dispute resolution. The bill allows a state to establish a program where the court may refer a case to an alternative dispute resolution procedure, including a private dispute resolution organization. The costs of such a program may be financed by the parties to the dispute. Records of any ADR procedure must remain confidential and may not be used against a defendant in any judicial or administrative proceeding.
• Preemption of state law. The bill preempts some, but not all state laws. The bill does not preempt any state law that imposes greater protections for health care providers, plans, or organizations at the expense of consumers. The bill does not preempt state alternative dispute resolution programs, state damage caps on economic, non-economic or punitive damages, or state based defenses; the bill does preempt all other areas covered by the bill, including state rules regarding joint and several liability, the availability of damages, collateral sources, attorney's fees, and periodic payments