Mr. Chairman, I thank the gentleman for yielding. Mr. Chairman, I would say to my colleagues that this is about bad medicine, not good medicine, and it is about undermining good healthcare, as we have seen in the TrumpCare saga, causing…
Mr. Chairman, I thank the gentleman for yielding.
Mr. Chairman, I would say to my colleagues that this is about bad medicine, not good medicine, and it is about undermining good healthcare, as we have seen in the TrumpCare saga, causing some 49 million people to lose their insurance. Here we go again.
I would offer to say that the most difficult, hurtful, and harmful aspect of this particular legislation is that it would make it more difficult for plaintiffs to seek redress for medical injuries that have been proven in court.
In addition, it proposes to make dangerous and potentially unconstitutional changes to our Nation's Federal system, intruding on State sovereignty, the very thing that Republicans seem to relish and to support, because this bill attempts to preempt the several areas of tort law that have been traditionally reserved to the States.
I would tell my good friends in Tennessee and West Virginia: Deal with your States, just as other individuals deal with their own States.
This bill, as well, has a very difficult impact on medical malpractice. Because it was written so vaguely, the broad language sweeps into not only doctors and other medical professionals, but hospitals and clinics and almost every entity that contributes in any way to making any healthcare product or service available. That clearly impacts the healthcare of Americans.
When your child is injured through no fault of their own or your own, you need relief for that child. Interestingly enough, the American Bar Association that represents all lawyers, trial lawyers, of which there is an attempt to impugn their work, contempt for trial lawyers and the good work that they do. But the ABA says they are opposed to this bill, and they represent lawyers who fight every day to make sure the injustices don't happen.
But here is the real cause of my angst for this particular bill: ``Medical Error Leaves Family With Unanswered Questions.''
``Olivia was a senior in high school in Santa Monica, California, an accomplished scholar, actress, and musician who had earned early acceptance to Smith College.''
``Olivia was born with a congenital heart condition.''
She was going into college, but had a condition that caused her to go into the hospital. When she went in, she had a small procedure. Her vitals were dropping. Hospital staff waited more than 10 minutes before attempting resuscitation, but it was too late. She remained in a coma and died.
Mr. Chairman, I include the article in the Record.
Medical Error Leaves Family With Unanswered Questions
Research has found that 440,000 Americans die every year
from preventable medical errors each year.
Olivia was a senior in high school in Santa Monica,
California, an accomplished scholar, actress, and musician
who had earned early acceptance to Smith College.
Olivia was born with a congenital heart condition that was
monitored throughout her childhood.
The fall that Olivia was supposed to start college, she
underwent a routine procedure to help doctors figure out if
she could be considered for a surgery that would improve her
condition.
The procedure was completed without complications, but
while Olivia was still under anesthesia, a cardiology fellow-
in-training pulled the catheter lines, causing Olivia's heart
rate, pulse, and blood pressure to drop rapidly. Even though
her vitals were dropping, hospital staff waited more than 10
minutes before attempting resuscitation. But it was too late.
Olivia would never regain consciousness and died that
winter, never having lived her dream and attending college.
Her future was stolen from her, and immediately her family
tried to understand what had gone wrong. They began to ask
questions on how this could have happened, but they were
given very few answers from the hospital.
Finally, the hospital gave her family incomplete medical
records to sift through and find answers. They sought the
help of an attorney because, despite their best efforts, they
still did not fully understand what caused their daughter's
death. But due to California's out dated $250,000 cap on
medical negligence damages, it was nearly impossible to find
one.
Olivia's life was cut short by a preventable medical error,
and unfortunately, she is not alone. In the U.S., preventable
medical errors are the third leading cause of death.
Our focus should be on improving patient safety and
preventing medical errors, not limiting the rights of injured
patients and their families. Lawmakers who seek to limit the
accountability of health care providers are seeking to limit
our rights and our avenues to justice.
Don't our loved ones deserve better?
Mr. Chairman, what do you want families to face--no relief? Or do you want these constant errors to go unrecognized and reconciled? This bill will do that by denying the ability.
It provides immunity for healthcare providers who dispense defective or dangerous products. It makes it harder for victims to attain adequate legal representation, and it imposes a risk or loss on victims rather than wrongdoers. This bill undermines healthcare and it undermines good healthcare.
Mr. Chair, I include in the Record a letter from the American Bar Association opposing this bill.
American Bar Association,
Washington, DC, February 27, 2017.
Re Concerns Regarding H.R. 1215, the ``Protecting Access to
Care Act of 2017.''
Hon. Bob Goodlatte,
Chairman, Committee on the Judiciary, House of
Representatives, Washington, DC.
Hon. John Conyers, Jr.,
Ranking Member, Committee on the Judiciary, House of
Representatives, Washington, DC.
Dear Chairman Goodlatte and Ranking Member Conyers: On
behalf of the American Bar Association, which is the largest
voluntary membership organization of legal professionals in
the United States, consisting of more than 400,000 members
from all 50 states, the District of Columbia and other
jurisdictions, I am writing to express our opposition to H.R.
1215, the ``Protecting Access to Care Act of 2017.'' I
understand that your committee is scheduled to mark up this
bill as early as tomorrow.
For over 200 years, the authority to determine medical
liability law has rested in the states. This system, which
grants each state the autonomy to regulate the resolution of
medical liability actions within its own borders, is a
hallmark of our American justice system. The states also
regulate the insurance industry. Because of the roles they
have played, the states are the repositories of experience
and expertise in these matters. Therefore, the ABA believes
that Congress should not substitute its judgment, as is
proposed in H.R. 1215, for the systems that have evolved in
each state over time.
Specifically, I would like to share with you the ABA's
concerns and other views regarding key provisions in the
proposed legislation relating to damages, proportionate
liability, and contingent fees.
Damages. The ABA believes that compensatory damages should
not be capped at either the state or federal level, and, as a
result, we have serious concerns regarding Section 3(b) of
H.R. 1215 that would cap noneconomic damages for a
plaintiff's injuries at $250,000 regardless of the number of
parties against whom the action is brought or the number of
separate claims or actions brought with respect to the same
injury. For more than thirty years, the ABA has studied the
research on federal and state legislative efforts to impose
limits on noneconomic damages, including pain and suffering.
Empirical research has shown that caps diminish access to the
courts for low wage earners, like the elderly, children, and
women; if economic damages are minor and noneconomic damages
are capped, victims are less likely to be able to obtain
counsel to represent them in seeking redress.
Those affected by caps on damages are the patients who have
been most severely injured by the negligence of others. These
patients who reside in communities around the country should
not be told that, due to an arbitrary limit set by members of
Congress in Washington, DC, they will be deprived of the
compensation determined by a fair and impartial jury. The
courts already possess
and exercise their powers of remittitur to set aside
excessive jury verdicts, and that is the appropriate solution
rather than an arbitrary cap. For these reasons, the ABA
opposes those provisions in H.R. 1215, such as Section 3(b),
which would place a dollar limit on recoverable damages and
operate to deny full compensation to a patient in a medical
liability action.
Proportionate Liability. Section 3(d) of H.R. 1215 would
create a ``fair share rule'' under which each party would be
liable only for its share of any damages, and, as a result,
the provision would preempt existing state laws that provide
for joint and several liability in medical liability cases.
The ABA believes that, at the state level, the laws providing
for joint and several liability should be modified to
recognize that defendants whose responsibility is
substantially disproportionate to liability for the entire
loss suffered by the plaintiff should be held liable for only
their equitable share of the plaintiff's noneconomic loss.
Although the ABA supports this principle and encourages other
improvements to the tort laws at the state level, it opposes
federal preemption of the medical liability laws of the
states and territories. Therefore, the ABA opposes Section
3(d) to the extent that it would preempt existing state laws
and to the extent that it would apply a proportionate
liability rule to all damages, not just the plaintiff's non-
economic damages.
Contingent Fees. Section 4(a) of H.R. 1215 would empower a
court to reduce the contingent fees paid from a plaintiff's
damage award to an attorney, redirect damages to the
plaintiff, and further reduce contingent fees in cases
involving minors and incompetent persons. The ABA opposes
sliding scales for contingent fees and other special
restrictions on such fees. In 1985, the ABA created a Special
Committee on Medical Professional Liability (``Special
Committee'') to study the initiatives proposed at that time
in an Action Plain of the American Medical Association
Special Task Force on Professional Liability and Insurance.
Among the initiatives was a recommendation of sliding scales
on contingent fees, having effects comparable to the caps
proposed here. After review, the Special Committee concluded
the following:
``A sliding scale for contingency fees in medical
malpractice litigation may very well reduce total awards for
patient-victims by depriving them of representation by a
trial lawyer sufficiently skilled at obtaining the highest
appropriate award. Mandatory sliding scale systems could also
inhibit claimants' access to the court system by limiting the
availability of counsel. And imposing sliding scales only in
medical malpractice cases would, in effect, create different
level of skills among available counsel for plaintiffs in
medical malpractice cases from those available to claimants
in other tort cases.''
As a result of this finding, the ABA adopted a policy in
1986 that ``no justification exists for imposing special
restrictions on contingent fees in medical malpractice
actions.'' Therefore, the ABA opposes the limits on
contingent fees contained in Section 4 of H.R. 1215.
The American Bar Association remains committed to
maintaining a fair and efficient justice system where victims
of medical malpractice can obtain redress based on state
laws, without arbitrary or harmful restrictions. We offer
these perspectives for your consideration as you mark up H.R.
1215.
Sincerely,
Thomas M. Susman,
Director, Governmental Affairs Office.
Mr. CHAIR, as a senior member of the Judiciary Committee, I rise in strong opposition to H.R. 1215, the so-called ``Protecting Access to Care Act of 2017.''
I oppose this misguided and ill-considered legislation for several reasons.
Specifically, the bill before us should be rejected because:
1. H.R. 1215 violates state sovereignty;
2. H.R. 1215 applies well beyond medical malpractice;
3. Unjustifiably caps noneconomic damages, which will have a disproportionately adverse impact on women, the poor, and other vulnerable groups.
4. Provides unjustifiable immunity for health care providers who dispense defective or dangerous pharmaceuticals or medical devices;
5. Imposes an excessively short statute of limitations period;
6. Makes it harder for victims to obtain adequate legal representation; and
7. Inequitably imposes the risk of loss on victims rather than wrongdoers.
For over 200 years, the authority to determine medical liability has rested in the states.
This system, which grants each state the autonomy to regulate the resolution of medical liability actions within its own borders, is a hallmark of our American justice system.
H.R. 1215 would preempt state law in all 50 states with a rigid, uniform set of rules designed to make it more difficult for malpractice victims to obtain relief in the courts.
Victims injured by the negligent conduct of others, who have lost limbs, suffered traumatic brain injury, or lost their vision following medical procedures should not be subject to additional burdens of a possible limited recovery, currently available under state patients' bills of rights and other protections under the Affordable Care Act.
The definitions in H.R. 1215 are written in such vague and broad language as to potentially sweep in not only doctors and other medical professionals, hospitals and clinics, but also every entity that contributes in any way to making any health care product or service available, including insurance companies, pharmaceutical manufacturers, health product manufacturers, pharmacists, nursing homes, assisted living facilities, and mental health treatment centers, and drug and alcohol rehabilitation facility, among others.
H.R. 1215 will do nothing to strengthen protections for patients.
It goes in the opposite direction, by excusing the health care industry from accountability for carelessness, and shifting the burden for shouldering the consequences of preventable medical injury to the injured patients, their families, their employers, their insurance companies, and taxpayers.
Current provisions of the Affordable Care Act prohibit insurance companies from denying coverage for preexisting conditions, mandate coverage for young adults and children under the age of 26, and secure lifetime coverage caps, ensuring patients receive the care they need.
Empirical research has shown that caps on damages, such as those envisioned by H.R. 1215, diminish access to the courts for the most vulnerable, such as low wage earners, like the elderly, children, and women.
The bill arbitrarily caps so-called ``non-economic loss''--which sweeps in essentially everything that is not loss of salary or additional medical expenses--at $250,000 for the patient's lifetime, punishing those patients with the most devastating, life-altering injuries.
The bill forces the injured patient to take the amounts received for future expenses resulting from the injury in a ``structured settlement,'' which may not match up with the patient's actual needs as they arise, and would further reduce the amount the careless health care provider actually pays.
Preventable medical errors are the third-leading cause of death in the United States, with an estimated 440,000 deaths each year following a medical error or hospital-caused infection during a hospital stay.
Addressing this problem must be a national priority.
And although policies to promote and require safer practices are key to this effort, that is insufficient.
We cannot assign a government monitor to every hospital operating room and every doctor's office.
Effective protection should also include enabling patients and their families to hold health care providers accountable for errors that cause harm.
H.R. 1215 would unfortunately take several major steps backward from this goal.
The bill twists important protections found in many state laws into an additional legal hurdle.
An extended statute of limitations protection allows patients who do not discover their injury until much later, sometimes many years after the medical procedure or intervention, to still have a change to seek legal help.
But in the bill, the period in which an injured patient can seek legal help is actually shortened to one year.
The bill cuts off a patient injured as a young child if their family fails to bring legal action on their behalf, long before they are old enough to legally act on their own behalf.
This legislation would impose various restrictions on medical malpractice lawsuits, causing these restrictions to apply regardless of how much merit a case may have, the negligence at issue, or the severity of the issue.
If economic damages are minor and noneconomic damages are capped, victims are less likely to be able to obtain counsel to represent them in seeking redress in these personal injury malpractice cases that often operate under contingency fee.
Those affected by caps on damages are the patients who have been most severely injured by the negligence of others.
These patients who reside in communities around the country should not be told that, due to an arbitrary limit set by members of Congress in Washington, DC, they will be deprived of the compensation determined by a fair and impartial jury.
The courts already possess and exercise their powers of remittitur to set aside excessive jury verdicts, and that is the appropriate solution rather than an arbitrary cap.
I am concerned that H.R. 1215 would put patient safety at higher risk, by significantly undermining the accountability of those who provide patients with medical care.
H.R. 1215 undercuts patients in situations in which carelessness or misconduct by several health care providers combines to injure the patient.
It arbitrarily ``divides'' blame among those actors and then if one of them evades accountability for any reason, the others who caused the injury are excused from having to make up the difference, and the injured patient is short-changed.
H.R. 1215 shifts accountability away from the careless health care providers who caused the injury and onto ``collateral sources,'' such as the patient's insurance company or employer, or the government, that pay for part of the patient's medical expenses or other expenses resulting from the injury.
In effect, these other sources provide involuntary free insurance to careless health care providers.
The bill excuses doctors and other health care providers from any responsibility of looking into the safety and effectiveness of any medication or medical product, so long as it has been approved by the
Mr. Chair, I thank the gentleman very much. I think the question to the gentleman from Michigan, and the gentleman's comments from Iowa, is the question of good medicine, and additional tests may, frankly, just be good medicine.
Maybe, Mr. Chair, Mr. Conyers would agree that we should gather about insurance reform and capping premiums so that we can help our doctors. And I would assure you that they would be very happy on that.
But to the gentleman's point, I'm sorry to say he was incorrect, because we note that there are almost 20 States that have a variety of noncaps on certain aspects, and now the Federal intrusion will come in and now tell them where they do not have caps, that they have to have caps.
In fact, he is incorrect, and this bill does skew the medical service or medical treatment in our States.