Medical Malpractice Reform: A Fix for a Problem Long out of Fashion

Managed Care Magazine
Sunday, October 1, 2017

The House has passed legislation that the AMA and others endorse. But the sense that there is a malpractice crisis has ebbed and Senate action is unlikely.

By Richard Mark Kirkner

You may remember Y2K: anxiety that computers would crash, trains would stop running, and the electric grid would shut down. Turns out it was hype, and at 12:00:01 on Jan. 1, 2000, the world kept functioning.

Around that time, there was also what was called “the medical malpractice crisis,” when doctors’ malpractice premiums spiked and lawsuits were reaching an all-time high. That same year, a presidential task force called medical errors a “national problem of epidemic proportions.” In late 1999, the Institute of Medicine came out with its To Err is Human report that said as many as 98,000 people die every year from otherwise preventable medical errors.

That was a long time ago, and state tort reforms have all but relegated the malpractice crisis to the history books. But there’s good news for those of you into all things retro: The House of Representatives just voted to fix the malpractice crisis. In June, the House passed HR 1215, the “Protecting Access to Care Act of 2017,” by a 222–197 margin, with 17 Republicans joining the majority of Democrats to vote against it.

What HR 1215 would do

The legislation would apply to any health care provided through federal programs or supported by federal subsidies. It would cap noneconomic damages like pain and suffering in malpractice cases at $250,000, limit lawyers’ contingency fees, and allocate damages proportionately to all parties involved. That is, it would do those things if it became law, but it probably won’t. “When a bill comes out of the House with a vote like that, it goes to Senate in a very weakened state,” says Joanne Doroshow, who has followed the legislation as executive director of the Center for Justice and Democracy, a consumer rights organization founded by Doroshow, a former staff attorney for Ralph Nader. GOP opposition in the House has diminished any Senate incentive to take up the legislation, she says.

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