This GOP Health Bill Proposes New Limits To Medical Malpractice Awards

Wednesday, June 28, 2017

Last week, a jury awarded a Pennsylvania man $620,000 for pain and suffering in a medical malpractice lawsuit he filed against a surgeon who mistakenly removed his healthy testicle, leaving the painful, atrophied one intact.

However, if a bill before the House of Representatives passes, the maximum he would be able to receive for such "non-economic" damages would be $250,000.

Non-economic damages cover losses that are hard to put a dollar amount on — such as suffering, loss of a limb, pain, and loss of companionship. In addition, medical malpractice awards may include monetary damages to cover medical costs and loss of future wages. Sometimes punitive damages may be awarded as well, as punishment for reckless or other harmful behavior.

The bill H.R. 1215 is part of a package of proposed reforms that supplement the American Health Care Act, the House measure to replace the Affordable Care Act that was narrowly approved in May. The Trump administration has pledged to support the tort reform legislation.

Still, passage is far from certain; groups across the political spectrum oppose the measure. Advocates for patients say such legislation would be unfair to people seriously injured by medical negligence, whose lives are changed forever. Many conservatives don't embrace it either because it would impose federal standards on tort law, an area where states have traditionally determined the rules….

About half of states have a cap of some sort on non-economic damages in medical malpractice cases, according to Joanne Doroshow, executive director of the Center for Justice and Democracy, a consumer advocacy organization for civil justice issues.

Under the House bill, states that already have caps on non-economic damage awards could keep those limits in place. In states without such caps, even if the state constitution prohibits them or state courts have struck them down, the federal $250,000 cap would apply.…

Although the damages cap is noteworthy, other elements of the House bill also trouble consumer advocates. For example, it would establish a three-year statute of limitations for consumers to bring a lawsuit after an injury, or a one-year limit from the date that the consumer discovers or should have discovered the injury.

"Because it's [worded as] whichever comes first, for all intents and purposes it's one year," said Doroshow. "That is a drastic change. Almost no state has a statute of limitations that severe."

The bill would also set limits on the amounts that lawyers can recover in contingency fees from legal judgements in consumer cases. This seemingly consumer-friendly provision could actually harm patients, said Doroshow.

Medical malpractice cases are complex and expensive to bring, she noted. "If you have a law that caps the ability of the attorney to recover from the judgment, they'll think twice before taking a case," Doroshow said. "It hurts the patient's ability to have a competent attorney or any attorney at all."

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