A bill that would reform the country’s medical malpractice laws would undermine public safety by limiting attorney fees and possibly preventing lawsuits from being filed by patients who have been injured as a result of medical negligence, a visiting professor from Georgetown University Law Center said today in a congressional hearing on the bill, H.R. 5.
Section 5 of H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2011 (PDF) would impose limits on contingent fees that range from 40% of the plaintiff’s recovery up to $50,000 to a maximum of 15% of any recovery over $600,000.
Brian Wolfman, visiting professor of law at Georgetown University and co-director of the Institute for Public Representation, said the limit may appear to be pro-consumer, but it’s “a very bad deal.”
“The free market works reasonably well in individual lawsuits, where the client’s interest in maximizing recovery and the lawyer’s interest in a fair fee are well aligned and do not require the kind of micromanagement and anti-free market regulation that H.R. 5 would impose,” Wolfman said in testimony before the House Energy & Commerce Committee’s Subcommittee on Health.
H.R. 5, sponsored by Rep. Phil Gingrey (R-Ga.), also includes a cap of $250,000 for noneconomic damages.
“The idea that $250,000 can fully compensate for these types of injuries — injuries that may last a lifetime — is, to be blunt, absurd. And the fact that H.R. 5 fixes noneconomic damages at $250,000 forever, regardless of the impact of inflation, underscores the conclusion that the $250,000 cap is not a genuine attempt at gauging the impact on real people’s lives of noneconomic injuries,” Wolfman said.
Rep. Joe Pitts (R-Pa.) said in his opening statement that the cap wouldn’t punish patients who were injured by medical negligence.
“Capping noneconomic medical malpractice awards does not deny patients their day in court or fair compensation. It merely reins in over-the-top verdicts and allows conscientious doctors to afford insurance coverage and serve their patients,” he said.
Dr. Lisa Hollier, representing the American Congress of Obstetrics and Gynecology, said similar reform in Texas helped to stabilize the medical liability insurance market and provided more patients with access to medical care, especially to patients in rural areas.
“In all, 57 Texas counties have seen a net gain in obstetricians, including 28 medically underserved counties and 20 counties designated partially medically underserved,” she said.
Hollier, professor and director of the Lyndon B. Johnson Residency Program at the University of Texas Medical School at Houston, said malpractice insurance rates for obstetricians decreased by 28%, allowing more providers to remain in practice and increasing access to care for women across Texas. However, she warned, in states that haven't enacted medical liability reform, "good doctors will continue to be driven out of practice or out of their home states."
“The costs of the current tort system are born by all obstetric caregivers….This contributes to a reduction in obstetric care by those currently practicing and in the number of American medical school graduates choosing to enter obstetric residency programs. As a consequence, the quality and availability of care for future generations of women in this country is threatened,” Hollier said.
Dr. Troy Tippett, medical director for the Neurosurgical Group in Pensacola, Fla., testified that states that have yet to enact medical liability reform face shortages of doctors in high-risk specialties. Doctors are also limiting their practices to low-risk patients to avoid the risk of a lawsuit, he said.
“The impact is felt when the fear of junk lawsuits erodes the doctor-patient relationship, which is crucial to delivering exceptional health care. Medical lawsuit abuse is driving up health care costs at a time when the country continues to suffer from a weak economy and a lack of jobs,” Tippett said. “With medical liability reform and lower insurance rates, doctors would be able to direct resources toward better patient care through increased hiring and improved technology.”
Rep. Henry Waxman (D-Calif.) said claims that reform would create new jobs “bear little to no relation to the facts….Contrary to arguments made by proponents of medical liability reform, the experiences of states that have implemented targeted types of reform demonstrate that they have not reaped the magical benefits some have claimed.”
“Let’s take my own state of California, for instance. California enacted the Medical Injury Compensation Reform Act — or MICRA — in 1975. In the first 13 years after its passage, medical malpractice insurance premiums shot up by some 450%. Premiums only decreased after California subsequently enacted Proposition 103, a ballot initiative that included a mandatory 20% premium rate rollback,” Waxman said.
Waxman said the bill would pre-empt states’ rights.
“Regulation of insurance and the practice of medicine are quintessential state issues — they always have been. H.R. 5 would take away that or pre-empt that authority and that prerogative….But as this legislation makes clear, that guiding philosophy evaporates when it comes to protecting the interests of the insurance industry. No wonder the author of this legislation did not cite the 10th Amendment — the one that reserves power to the states — as the constitutional basis for its introduction,” he said.
John Dingell (D-Mich.) called H.R. 5 a “flawed attempt at medical malpractice reform in the extreme.” He proposed what he called a “third way solution” of increased patient safety programs, such as the Department of Human Services’ Patient Safety and Medical Liability initiative, which made $25 million available for planning and demonstration grants to test models for patient safety, foster better communication between doctors and patients, and achieve medical liability reform.
“While I look forward to seeing the results of these demonstration projects, I believe that we should use today’s hearing not as a forum to promote H.R. 5’s extreme medical malpractice reform, but rather as an opportunity to explore ways to work together in a bipartisan manner toward careful, balanced and targeted legislation that will serve the interests of both physicians and their patients, not medical malpractice insurance companies. I hope that today’s dialogue can continue and that my friends on the other side of the aisle will work with me to achieve this goal,” he said.