The Other Terrible Health Care Bill Pending in Congress

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The U.S. House of Representatives passed a bill on June 28 that would erect steep hurdles for injured patients looking to hold health care providers accountable for medical malpractice. Though most states have passed limits on certain types of damages, the House bill would go much further than these state laws and impose draconian limits on injured patients’ lawsuits across the country.1

The bill, H.R. 1215—misleadingly named Protecting Access to Care Act of 2017—would impose a limit of $250,000 for noneconomic damages such as pain and suffering.2 Although supporters of tort reform claim that such limits will prevent so-called frivolous lawsuits, these caps only affect the victims of malpractice who have suffered the most—cases in which the damages exceed the limits. And limits on noneconomic damages affect certain victims more than others: particularly people with severe disabilities, women, the elderly, and children.3

The House bill also includes a draconian statute of limitations for medical malpractice lawsuits. In most cases, the statute would require injured patients to file a lawsuit within one year after they discovered or “should have discovered” the injury.4 Joanne Doroshow, executive director of the consumer advocacy group Center for Justice and Democracy, has said that “almost no state has a statute of limitations that severe.”5

Within that one-year time period, the bill would require victims of malpractice to jump through certain hoops before they could file a lawsuit. The lawsuit would have to be filed with an affidavit from an expert witness who meets strict requirements.6 The bill says that only a doctor practicing or teaching in the same field and in the same state or a neighboring state can testify to a defendant’s malpractice.7 But it would allow courts to waive these requirements if the “appropriate witnesses otherwise would not be available.”8

In a section that is laughably titled “Maximizing Patient Recovery,” the text of the bill sets out limits on the fees that attorneys would be able to collect for representing injured patients.9 These limits, along with the cumbersome expert witness requirements, would make it financially difficult for lawyers to justify taking these cases. Ultimately, this would make it much harder for victims of malpractice to find lawyers to represent them.

Slamming the courthouse doors on severely injured patients

In 2011, a doctor and a physician’s assistant in a Milwaukee emergency room treated Ascaris Mayo for a high fever and abdominal pain.10 The physician’s assistant recorded an infection as a potential diagnosis, but no one mentioned this possibility to Mayo. Instead, she was told to follow up with her gynecologist about a previous diagnosis.11 The next day, Mayo felt worse and sought treatment at a different emergency room, where she was diagnosed with an untreated septic infection. Mayo went into a coma and was admitted to a hospital. The infection caused nearly all of her organs to fail and led to gangrene in her arms and legs; all four limbs had to be amputated.12

Mayo and her family sued her health care providers for medical malpractice and failure to provide informed consent.13 The jury heard evidence about her treatment, injuries, and the appropriate standard of medical care and awarded her $15 million in noneconomic damages for her health care providers’ failure to provide informed consent about possible treatment.14

Under the bill pending in Congress, Mayo would only have been able to receive $250,000 in noneconomic damages—a fraction of the damages awarded by the jury. Her case is an example of how limits on damages have the greatest impact on the most severely injured patients.

The Wisconsin Court of Appeals recently upheld the jury verdict in Mayo’s case and overturned the state’s $750,000 cap on noneconomic damages.15 The court held that the limit violated the equal protection rights of severely injured patients “because Wisconsin’s cap … always reduces noneconomic damages only for the class of the most severely injured victims.”16 The court found that the limit did not further the legislature’s stated goals in creating it.17

Similar to the bill in Congress, a Texas law caps noneconomic damages at $250,000.18 Suits involving wrongful death claims are limited to $500,000 in “nonmedical” damages.19 The law also creates similar requirements for expert evidence. For patients like Mayo who were injured in emergency rooms, plaintiffs can only recover damages if they prove that the defendants were “willfully or wantonly negligent,” a standard that one court interpreted as meaning that providers must know about the danger but demonstrate that they “did not care.”20

In an interview with the Center for American Progress, Patricia Whitman of San Antonio said that she could not find an attorney after an emergency room doctor misdiagnosed a severe heart attack—despite evidence that doctors missed an obvious diagnosis. One attorney wrote her a letter explaining that it would be difficult to meet the extremely high standard for emergency room malpractice under Texas law.21

If the bill in Congress passes, patients across America will find themselves in the same place as those in Texas. These steep hurdles to holding health care providers accountable infringe the right to a jury trial, which is protected by state constitutions and the Bill of Rights. The Missouri Supreme Court, in 2012, struck down a $350,000 limit on noneconomic damages in a lawsuit by a parent whose child suffered brain damage during birth, due to alleged malpractice.22 The Missouri Constitution says “the right of trial by jury … shall remain inviolate.”23 The court decreed, “The individual right to trial by jury cannot ‘remain inviolate’ when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case.”24

The Seventh Amendment to the Constitution states that “the right of trial by jury shall be preserved.”25 Commenting on the right to a trial by jury, John Adams said that Americans have “no other indemnification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”26

Corporations that don’t like being sued bankroll tort reform efforts

The medical and insurance industries launched a movement in the 1980s to limit lawsuits, and the so-called tort reform movement gained momentum when Big Tobacco got involved after facing massive lawsuits for its poisonous, addictive products.27 A 1986 memo from the Tobacco Institute laid out a plan for creating groups that appeared to be grassroots-driven but were actually “coordinated” by Big Tobacco.28

Industries that were facing massive liability for dangerous products created an enormously successful public relations campaign that convinced the public that a “litigation crisis” existed.29 The myth of frivolous lawsuits pervaded the news media and pop culture.30 Distorting the Law, a 2004 book by William Haltom and Michael McCann, detailed how news coverage of cases like Liebeck v. McDonald’s Restaurants, the 1994 lawsuit that came to be known as the McDonald’s hot coffee case, skewed the facts in a way that fit the narrative of tort reform advocates. in the Liebeck case, coverage downplayed McDonald’s misconduct and the severe injuries the plaintiff sustained after spilling scalding-hot coffee on her lap.31 Without any statistical evidence to back them up, these narratives helped justify state legislation that limited the amount of damages that injured plaintiffs could recover.32

In recent decades, state legislatures across the country have passed bills that make it harder for injured people to file lawsuits against those whose negligence injured them.33 Big business spent millions lobbying for these laws.34 The American Legislative Exchange Council, or ALEC, offers model bills that limit liability.35 The corporate-funded American Tort Reform Association claims that 23 states have limited noneconomic damages. Some of these laws specifically limit noneconomic damages in medical malpractice cases, like the bill pending in Congress, and none have a lower limit than $250,000.36

As these bills proliferated, many state supreme courts struck them down as unconstitutional,37 citing state constitutional rights that are broader than the Seventh Amendment.38 The same big business interests that spent millions lobbying for these laws then began to spend millions to elect state supreme courts that would uphold the laws.39 A 2013 CAP report noted:

The only thing standing in the way of limits on corporate liability was the judiciary and those pesky constitutional rights that it protected. Big corporations that did not like being sued began pouring money into tort-reform groups and corporate advocates such as the U.S. Chamber of Commerce. Those groups, in turn, gave money to the campaigns of judges, who then voted to uphold statutory caps on damages and limit citizens’ right to sue.40

The Ohio Supreme Court, for example, struck down several tort reform bills in the 1990s, but corporate campaign cash poured in soon after.41 In 2007, the court upheld a tort reform bill that was very similar to one it had struck down in 1999.42 In his dissent, Justice Paul Pfeifer said, “Today is a day of fulfilled expectations for insurance companies and manufacturers of defective, dangerous, or toxic products that cause injury to someone in Ohio. But … this is a tragic day for Ohioans, who no longer have any assurance that their Constitution protects the rights they cherish.”43 CAP reviewed hundreds of personal injury cases decided by the court and found that from 2007 to 2012 the court voted for corporate defendants in 80 percent of the cases studied.44

Legislators in states across the country continue to pass bills that would make it harder for injured patients or workers to hold negligent actors accountable.45 The Arkansas legislature has proposed a constitutional amendment that would overturn rulings by the state supreme court that preserve the right to a jury trial.46 A new Kentucky law requires a panel of health care providers to approve any medical malpractice lawsuits before they can be filed.47 And in Missouri, the governor has signed legislation that specifically limits damages in civil rights lawsuits against employers and landlords.48

Libertarians object to federal takeover of state tort law

On June 27, the House Liberty Caucus—members of Congress who see themselves as “dedicated to the principles of limited government, economic freedom, and individual liberty”—issued a public statement criticizing the pending tort reform bill.49 In the statement, Matt Weibel, executive director of the caucus, wrote: “The power to … set rules for lawsuits arising under state law is an essential power reserved to the states.”50 Weibel rejected the idea that the bill is an appropriate exercise of federal power merely because it applies to suits involving health care providers that receive federal funding. This exercise of federal authority “opens the door to similarly extreme federal interventions in any area on which the federal government chooses to spend money,” according to the statement.51

For years, conservatives and libertarians have argued that the Affordable Care Act (ACA) exceeds the federal government’s authority.52 The U.S. Supreme Court upheld the ACA’s individual health care insurance mandate in 2012, rejecting arguments from conservatives that the federal government could not regulate health care markets in this way.53 Conservatives criticized the Supreme Court—particularly Chief Justice John Roberts, the author of the opinion—for upholding the mandate.54

The House Liberty Caucus’s stand against the federal tort reform bill is consistent with their view that the government should have limited authority over health care. Georgetown University Law Center professor Randy Barnett, the intellectual force behind the legal argument against the ACA, criticized a similar 2012 bill by saying:

Constitutional law professors have long cynically ridiculed a “fair-weather federalism” that is abandoned whenever it is inconvenient to someone’s policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers “reserved to the states” as affirmed by the Tenth Amendment, they will prove my colleagues right.55

Conclusion: Making health care less safe

Hundreds of thousands of patients die from medical errors every year.56 When doctors cannot be held accountable for malpractice, patients are less safe. Brant Mittler, a cardiologist and attorney in Texas, warned about the effects of Texas limits on malpractice suits: “By giving damages to the individual, the jury is sending a message about safety to the doctors, the nurses, the hospital: ‘Please change your ways. Make health care safer to protect all of us.’”57

A 2014 study by Northwestern University examined the effects of damage caps in several states and found that the adoption of caps “is followed by a broad increase in adverse patient safety events”—an increase that averages 10 percent to 15 percent.58 In its ruling in Mayo’s lawsuit, the Wisconsin Court of Appeals noted that “the existence of noneconomic damages caps may actually increase the risk to patient safety.”59

The vote to approve H.R. 1215 by the GOP-led House shows that these legislators do not care about patients. In addition to insulating negligent health care providers from accountability, Congress is also considering a bill that would take health care insurance away from millions of Americans.60

The federal tort reform bill is not the kind of reform that our nation’s health care system needs. The Congressional Budget Office estimated that the bill would reduce government deficits, but this would come at a great cost for severely injured patients.61 Studies have shown that limits on damages have little effect on the cost of health care or the cost of medical malpractice insurance.62 Even malpractice insurers and tort reform advocates concede that caps do not lower malpractice insurance premiums.63

The Senate should stop this terrible legislation, or injured patients will find that they have no way to recover damages and hold providers accountable when doctors or hospitals provide shoddy care.

Billy Corriher is the deputy director of Legal Progress at the Center for American Progress. Legal Progress interns Sophia Caldera and Zachary Winkler contributed research for this brief.

Endnotes

  1. American Tort Reform Association, “ATRA Tort Reform Record,” July 6, 2017, available at http://www.atra.org/wp-content/uploads/2017/07/Record-07-06-17.pdf; Protecting Access to Care Act, H. Rept. 1215, 115 Cong. 1 sess. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/1215/text.
  2. Protecting Access to Care Act at § 3(b).
  3. Studies have found that these populations receive less, on average, in economic damages, whether because of retirement, employment discrimination, or other factors. Lucinda M. Finley, “The Hidden Victims of Tort Reform: Women, Children, and the Elderly,” Emory Law Journal 53 (3) (2004): 1263–1314; Lisa M. Ruda, “Caps on Noneconomic Damages and the Female Plaintiff: Heeding the Warning Signs,” Case Western Law Review 44 (1) (1993): 197–233, available at http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1966&context=caselrev; Thomas Koenig and Michael Rustad, “His and Her Tort Reform: Gender Injustice in Disguise,” Washington Law Review 70 (1995): 1–90.
  4. The bill states that the statute of limitations is either (1) three years after the injury, (2) three years after the treatment that resulted in the injury, or (3) one year after the patient discovers, or “through the use of reasonable diligence should have discovered” the injury. Whichever happens first is the governing statute of limitations. Protecting Access to Care Act at § 2(a)(1).
  5. Michelle Andrews, “House Seeks to Cap Malpractice Awards As Part of Health Care Update,” Kaiser Health News, June 27, 2017, available at http://khn.org/news/house-seeks-to-cap-malpractice-awards-as-part-of-health-care-update.
  6. The bill states that if the defendant health care provider is a specialist, the expert witness must be a doctor who is certified in the same specialty and has spent most of their working time in the previous year either teaching this specialty or engaging in a specialized “active clinical practice.” The same one-year experiential requirement is required in cases in which the defendant is a general practitioner. Protecting Access to Care Act at §§ 11 & 13.
  7. The bill states that, for the expert witness to testify in court about the alleged malpractice, the individual must also be licensed in the same state or a neighboring state. Ibid.
  8. Ibid. at § 11(c).
  9. Ibid. at § 4.
  10. Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 870 N.W.2d 841 (Wis. Sup. Ct. 2017), p. 2, available at http://law.justia.com/cases/wisconsin/court-of-appeals/2017/2014ap002812.html.
  11. Ibid., pp. 2–3.
  12. Ibid.
  13. Ibid.
  14. Ibid.
  15. Ibid., p. 25.
  16. Ibid., pp. 1–2.
  17. Ibid.
  18. Tex. Civ. Prac. & Rem. Code § 74.301.
  19. Ibid.
  20. Ibid.; Turner v. Franklin, 325 S.W.3d 771, 781 (Tex. Ct. App. 2010).
  21. Center for American Progress, “In Texas, No Justice for Injured Patients,” YouTube, October 21, 2014, available at https://www.youtube.com/watch?v=7Hxs-rqhce4.
  22. Watts v. Lester E. Cox Medical Centers, 376 SW3d 633 (Mo. 2012).
  23. Mo. Const. art. I § 22(a).
  24. Watts, 376 SW3d 633, p. 640.
  25. U.S. Const. amend. VII.
  26. John Adams, The Works of John Adams (Boston: Bolles and Houghton, 1851), p. 482.
  27. William Haltom and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis (Chicago: The University of Chicago Press, 2004).
  28. Carl Deal and Joanne Doroshow, “The CALA Files: The Secret Campaign by Big Tobacco and Other Major Industries to Take Away Your Rights” (New York: Center for Justice & Democracy, 2000), available at http://centerjd.org/content/cala-files-secret-campaign-big-tobacco-and-other-major-industries-take-away-your-rights.
  29. Haltom and McCann, Distorting the Law; Billy Corriher, “No Justice for the Injured: Big Business Is Funneling Campaign Cash to Judges Who Allow Corporate Wrongdoers to Escape Accountability” (Washington: Center for American Progress, 2013), available at https://www.americanprogress.org/issues/civil-liberties/report/2013/05/15/63363/no-justice-forthe-injured.
  30. Ibid.
  31. Haltom and McCann, Distorting the Law; Caroline Forell, “McTorts: The Social and Legal Impact of McDonald’s Role in Tort Suits,” Loyola Consumer Law Review 24 (2) (2011): 105–155, available at https://pdfs.semanticscholar.org/3ae3/62b9d8b9cd0825aaec769076d1e9d47d0293.pdf; Susan Saladoff, “Hot Coffee,” http://www.hotcoffeethemovie.com (last accessed July 2017).
  32. Haltom and McCann, Distorting the Law, pp. 73–110; Seth A. Seabury, Nicholas M. Pace, and Robert T. Reville, “Forty Years of Civil Jury Verdicts,” Journal of Empirical Legal Studies 1 (1) (2004): 1–25.
  33. American Tort Reform Association, “ATRA Tort Reform Record.”
  34. Corriher, “No Justice for the Injured.”
  35. American Legislative Exchange Council, “Civil Justice,” available at http://www.alec.org/taskforces/civil-justice (last accessed July 2017).
  36. American Tort Reform Association, “ATRA Tort Reform Record.”
  37. Corriher, “No Justice for the Injured,” pp. 9–11.
  38. Pound Civil Justice Institute, “State Constitutional Provisions, Statutes, and Court Decisions on Trial By Jury” (2011), available at http://www.poundinstitute.org/sites/default/files/docs/2011%20judges%20forum/2011%20Forum%20State%20Jury%20Trial%20Provisions.pdf (last accessed July 2017).
  39. Stephanie Mencimer, Blocking the Courthouse Door (New York: Free Press, 2006), pp. 62–77; Corriher, “No Justice for the Injured,” pp. 12–28.
  40. Corriher, “No Justice for the Injured,” p. 12.
  41. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio Sup. Ct. 1999); Adamsky v. Buckeye Local School District, 653 N.E.2d 212 (Ohio Sup. Ct. 1995); Galayda v. Lake Hospital Systems, Inc., 644 N.E.2d 298 (Ohio Sup. Ct. 1994); Cyrus v. Henes, 640 N.E.2d 810 (Ohio Sup. Ct. 1994); Brennaman v. R.M.I. Co., 639 N.E.2d 425 (Ohio Sup. Ct. 1994); Adam Liptak and Janet Roberts, “Campaign Cash Mirrors a High Court’s Rulings,” The New York Times, October 1, 2006, available at http://www.nytimes.com/2006/10/01/us/01judges.html.
  42. Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio Sup. Ct. 2007).
  43. Ibid. at 466.
  44. Corriher, “No Justice for the Injured,” pp. 18–21.
  45. American Tort Reform Association, “2017 State Tort Reform Enactments” (2017), available at http://www.atra.org/wp-content/uploads/2017/07/2017-State-Tort-Reform-Enactments.pdf.
  46. Lisa Hammersley, “Proposed Amendment,” Northwest Arkansas Democrat-Gazette, June 16, 2017, available at http://www.nwaonline.com/news/2017/jun/16/proposed-amendment-20170616/?news.
  47. Jack Brammer, “Lawsuit Challenges New Law Aimed at Limiting Medical Malpractice Lawsuits,” Lexington Herald-Leader, July 6, 2017, available at http://www.kentucky.com/news/politics-government/article159985419.html.
  48. Billy Corriher, “A New Missouri Law Creates Steep Hurdles to Discrimination Lawsuits,” Center for American Progress, July 12, 2017, available at https://www.americanprogress.org/issues/courts/news/2017/07/12/435653/new-missouri-law-creates-steep-hurdles-discrimination-lawsuits.
  49. House Liberty Caucus, “House Liberty Caucus Statement on H.R. 1215, Protecting Access to Care Act of 2017,” June 27, 2017, available at https://www.facebook.com/libertycaucus/posts/1429927993738790:0; House Liberty Caucus, “House Liberty Caucus Facebook Page: About,” available at https://www.facebook.com/pg/libertycaucus/about (last accessed July 2017); Susan Ferrechio, “Libertarian Wing of GOP Gains Strength in Congress,” Washington Examiner, January 24, 2014, available at http://washingtonexaminer.com/libertarian-wing-of-gop-gains-strength-in-congress/article/2542802.
  50. House Liberty Caucus, “House Liberty Caucus Statement on H.R. 1215.”
  51. Ibid.
  52. Elizabeth Price Foley, “Limited Government, Federalism, and the Affordable Care Act,” SCOTUSblog, August 9, 2011, available at http://www.scotusblog.com/2011/08/limited-government-federalism-and-the-affordable-care-act; Randy E. Barnett, “Is Health-Care Reform Constitutional?” The Washington Post, March 21, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/03/19/AR2010031901470.html.
  53. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (U.S. Sup. Ct. 2012).
  54. Eric R. Claeys, “Sebelius and the Election,” National Review, July 30, 2012, available at http://www.nationalreview.com/article/312533/sebelius-and-election-eric-r-claeys; Brion McClanahan, “John Roberts? Meet John Marshall,” Tenth Amendment Center, July 2, 2012, available at http://tenthamendmentcenter.com/2012/07/02/john-roberts-meet-john-marshall; Mike Lee, Why John Roberts Was Wrong About Healthcare: A Conservative Critique of the Supreme Court’s Obamacare Ruling (New York: Simon & Schuster, 2012). 
  55. Michelle Widmann Kimmel, “Constitutional Conservatives: Federal Tort Reform Violates States’ Rights and the 10th Amendment,” American Association for Justice, March 13, 2012, available at https://www.justice.org/blog/constitutional-conservatives-federal-tort-reform-violates-states%E2%80%99-rights-and-10th-amendment.
  56. Letter from Dr. Martin Makary to Dr. Thomas Frieden, “Methodology Used for Collecting National Health Statistics,” May 1, 2017, available at https://www.documentcloud.org/documents/2822345-Hopkins-CDC-letter.html.
  57. Center for American Progress, “In Texas, No Justice for Injured Patients.”
  58. Zenon Zabinski and Bernard Black, “The Deterrent Effect of Tort Law: Evidence From Medical Malpractice Reform.” Working Paper 13-09 (Northwestern University Law School, 2014), available at https://business.illinois.edu/nmiller/mhec/Zabinski.pdf.
  59. Mayo v. Wisconsin Injured Patients & Families Compensation Fund, p. 14.
  60. Scott Horsley, “GOP Senate Bill Would Cut Health Care Coverage by 22 Million,” National Public Radio, June 26, 2017, available at http://www.npr.org/2017/06/26/534432433/gop-senate-bill-would-cut-health-care-coverage-by-22-million.
  61. Congressional Budget Office, “Congressional Budget Office Cost Estimate: H.R. 1215, Protecting Access to Care Act of 2017” (2017), available at https://www.cbo.gov/publication/52518.
  62. Seabury, Pace, and Reville, “Forty Years of Civil Jury Verdicts”; J. Robert Hunter and Joanne Doroshow, “Premium Deceit: The Failure of ‘Tort Reform’ to Cut Insurance Prices” (New York: Center for Justice and Democracy, 2002), available at http://www.insurance-reform.org/studies/PremiumDeceit.pdf; Ben Sherman, “Study: Texas Tort Reform Did Not Reduce Health Care Costs,” ThinkProgress, June 26, 2012, available at http://thinkprogress.org/justice/2012/06/26/505562/study-texas-tort-reform-did-not-reduce-health-care-costs; Myungho Paik and others, “Will Tort Reform Bend the Cost Curve? Evidence From Texas,” Journal of Empirical Legal Studies 9 (2) (2012): 173–216; Austin American-Statesman, “Tort Reform’s Slight Impact No Shock,” June 22, 2012, available at http://www.statesman.com/news/news/opinion/tort-reforms-slight-impact-no-shock/nRpfQ.
  63. Public Citizen, “Insurance Companies and Their Lobbyists Admit It: Caps on Damages Won’t Lower Insurance Premiums,” available at https://www.citizen.org/article/insurance-companies-and-their-lobbyists-admit-it-caps-damages-wont-lower-insurance-premium-0 (last accessed July 2017).