House GOP Pushing Tort Reform Bill that Democrats Say Will Fail in Senate

House Republican leaders continued to push a medical malpractice reform bill this week that caps non-economic damages at $250,000 and limits lawyer contingency fees, arguing that it would save taxpayers $41 billion and prevent defense spending cuts.

The House passed the HEALTH Act in March, even though President Barack Obama said he would veto it and House Democrats say it will be dead-on-arrival in the Senate. Now, House Judiciary Committee Chairman Rep. Lamar Smith (R-Texas) is proposing the bill as part of a way to cut the federal budget.

“America's broken medical liability system is a good place to start to reduce federal spending and to avoid cuts Secretary of Defense [Leon] Panetta has called putting a gun to the head of the country and weaken our defense system for the future,” Smith said during the hearing.

The HEALTH Act reforms include a $250,000 cap on noneconomic damages and limits on the contingency fees lawyers can charge, creates a “fair share rule” that allocates damages in direct proportion to fault and it provides guidelines on the award of punitive damages, Smith said.

Smith said the Congressional Budget Office estimates the bill will reduce mandatory federal spending by eliminating "defensive medicine," where doctors are forced to conduct medical tests simply to avoid a lawsuit. “This wasteful defensive medicine adds to all our health care costs without improving the quality of patient care,” Smith said.

The judiciary committee’s ranking member, Rep. John Conyers (D-Mich.), said that repackaging the bill will ultimately be futile and the committee should look for other ways to recommend budget cuts. Conyers also said the bill does too much for big business.

“The legislation is literally a financial wish list for the pharmaceutical companies and the insurance companies; and so, rather than helping the doctors and the patients, the measure before us today would guarantee a windfall for the health care businesses,” Conyers said.

The committee spent hours voting down proposed amendments from Democrats this week, but have not yet voted on recommending the bill for the spending cut proposals. The Budget Control Act, signed into law in August, requires automatic spending cuts – called sequestration – if other cuts are not found.

Comments

[J Alexander]

Claims that capping damages for severely injured plaintiffs will "save taxpayers money" by avoiding unnecessary tests are hogwash. California has the same $250,000 cap on noneconomic damages and doctors still order the same tests -- because they generate fees. And if you only want to target "bottom feeders," how does an across the board cap, no matter how severe the injury or how outrageous the negligence, do that? The way to lower health care costs is to cover everyone, ideally through single payer or through the Affordable Care Act, and institute meaningful cost and profit controls.

[Jonathan Nace]

Because Mr. Nace isn't persuaded by your myths of defensive medicine and believes people's CONSTITUTIONAL RIGHTS to court access trump your investors' bottom lines.

[Darren McKinney]

Mr. Nace fails to disclose that the Institutes of Health study he references is now 13 years old and that two of its authors have since disclaimed its findings due to subsequently discovered methodological errors.

And for the record, neither I nor any tort reformer I know has anything against reputable lawyers who represent truly "injured Americans." It's the bottom-feeding parasites who look to live large off meritless claims with which we're concerned. Since Mr. Nace presumably pays taxes and health insurance premiums in one form or another like the rest of us, we must all wonder why he doesn't share our concern.

Darren McKinney
American Tort Reform Association
Washington, D.C.

[Jonathan Nace]

I guess Mr. McKinney views people who stand up for the rights of injured Americans "bottom feeders." Denis Mitchell makes valid points as to how the law actually works in reference to frivolous lawsuits and medical malpractice litigation. The study Mr. McKinney doesn't cite is that of the Institutes of Health that found that 98,000 people die each year due to preventable medical error.

Mr. McKinney clearly wants to scare the public into thinking that "we need" tort reform to protect them. When what he really wants to do is take rights away from the hard working Americans who get injured who he probably considers "bottom-feeders" as well, in exchange for corporate welfare handouts to insurance companies and big Pharma.

[Darren McKinney]

Denis Mitchell ignores the fact that the overwhelming majority of all lawsuits, including medical liability claims, settle before getting anywhere near a jury that a judge would have presumably instructed as to the particulars of applicable law.

Thus the principal idea behind the limiting of noneconomic damages is to reduce the motivation for a certain bottom-feeding element of the personal injury bar (we've all seen their cable TV commercials and billboards) to gin up meritless claims in the first place. For even meritless claims must be defended at considerable cost, and that cost ultimately is passed on to all health care consumers and taxpayers.

A 2006 Harvard study indicates that roughly 4 out of 10 medical malpractice lawsuits brought each year in the U.S. are without merit. And various credible studies more recently suggest we spend from $50 billion to $200 billion each on the practice of defensive medicine. Common sense dictates that we must meaningfully reform our medical tort system if we're to control health care spending as the baby boom gets older, fatter and sicker by the day.

House leadership understands this immutable truth and has acted accordingly. Senate leadership depends heavily on campaign contributions from personal injury lawyers and will act predictably.

Darren McKinney
American Tort Reform Association
Washington, D.C.

[Denis Mitchell]

"Unbridled punitive damages" do not exist, and certainly do not exist in medical negligence cases. In Maryland, the plaintiff must prove INTENTIONAL and MALICIOUS wrongdoing before the jury is permitted to consider punitive damages and the jury is never permitted to decide the issue in medical negligence cases. In D.C., there must be a showing of outrageous, fraudulent or reckless wrongdoing before the judge will even permit the jury to decide the issue of punitive damages. In Virginia, there is a conservative cap on punitive damages, and judges similarly screen the issue before it goes to the jury. Defense attorneys -- whose fees no one considers "capping" (and who do you think will have better lawyers if one side's fees are capped, but the other side's are uncapped) -- know these limitations and would be very effective and efficient in eliminating such claims from a case. As such, experienced plaintiff's lawyers in medical negligence cases do not seek punitive damages.

[Nat Fitzsimmons]

It may end up being a wash. Society already pays for this through higher medical costs through unnecessary medical procedures to avoid malpractice claims and lawsuits brought not to cover the costs of continued care, but to reap the big payday due to (almost) unbridled punitive damages awards that juries tend to give out.

[Michael Derrick]

Will such an Act not place a greater cost on society and the taxpayers who will ultimately have to care for the victims of malpractice?