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May/June 2012
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Public Citizen News
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By Dorry Samuels
When it comes to limiting pa-
tients’ rights, some members
of Congress refuse to give up.
The U.S. House of Representa-
tives passed a bill in March that
not only would restrict injured
patients’ ability to pursue legal
claims against negligent medi-
cal providers that harm them but
also would decimate state laws
meant to protect them.
The Help Efficient, Accessible,
Low-cost, Timely Healthcare
(HEALTH) Act of 2011 (H.R. 5)
was introduced in January 2011
by Rep. Phil Gingrey (R-Ga.). Far
from preserving access to health
care, the legislation would shield
physicians and hospitals, drug
and medical device manufactur-
ers and nursing home operators
from accountability and shift
burdens to malpractice victims.
Since its introduction, Pub-
lic Citizen has sought — through
letters, meetings, blog posts and
other educational materials — to
inform members of Congress
and the public of the bill’s harm-
ful effects. In March, Republican
leaders insisted on bringing this
bill to a vote in the House. Using
a shrewd tactic, they combined
H.R. 5 with another bill and re-
named it the Protecting Access
to Healthcare Act. Despite strong
opposition from Public Citizen
and other consumer and patient
advocates, representatives ap-
proved it by a 223-181 vote —
largely along party lines.
Unbelievably, the House ap-
proved the bill a second time —
adding it to the Republican bud-
get. While the legislation isn’t
expected to pass the Senate, Pub-
lic Citizen remains vigilant that
this harmful proposal does not
become law.
“The House-passed bill would
shield nursing homes, hospitals,
insurance companies, physi-
cians, and pharmaceutical and
medical device manufacturers
from legal accountability for a
huge range of misconduct,” said
Christine Hines, Public Citizen’s
consumer and civil justice coun-
sel. “The bill is so extreme that it
even drew opposition from the
California Medical Association, a
group that traditionally supports
medical liability limits.”
Public Citizen plans to continue
to fight the legislation — through
lobbying, coalition work, reports,
op-eds and activist engagement —
as the bill works its way through
the Senate.
What’s so bad
about the bill?
The bill would impose an arbi-
trary $250,000 cap on noneco-
nomic damages (the amount that
compensates patients for pain
and suffering that accompany
any loss of normal functions),
which would have a dispropor-
tionate impact on those with lit-
tle or no earned income, such as
children, full-time mothers and
seniors.
That means these individuals
or their families often would re-
ceive no compensation at all for
their injuries or deaths because
economic damages alone (of
which employment income is a
part) are not high enough to jus-
tify the risk and expense of pur-
suing a lawsuit.
The bill also would displace
longstanding state laws on medi-
cal malpractice liability and state
court decisions holding that cer-
tain liability restrictions violate
state constitutions. Most notably,
the bill would override state laws
that are protective of patients’
rights while allowing states to
provide greater protections to
medical providers who injure
patients.
The bill also includes harmful
provisions that would:
Shorten the time frame in
which a patient can file a
claim;
Allow negligent providers
to compensate patients
with multiple payments
over time, which would
short-change victims out
of the compensation they
need immediately to cover
their health care costs,
while providing a windfall
to the negligent provider;
Limit punitive damages
allowed to be imposed on
all health care industry
participants, including
drug and medical device
manufacturers, which
would eliminate a critical
incentive against the most
egregious types of
misconduct;
Cap patients’ attorney fees
but place no limit on health
care providers’ attorney
fees; and
Leave patients without
compensation for the share
of damages assigned to an
uninsured, underinsured
or bankrupt defendant.
Backers of H.R. 5 contend that
letting negligent health care pro-
viders off the hook would save
health care costs. In reality, the
opposite is true, Hines said. H.R.
5 would force the injured victims
and their families to turn to pub-
lic, taxpayer-funded programs
like Medicare, Medicaid and dis-
ability benefits for medical care
and other financial assistance.
“This legislation is a political
ploy designed to score points
with the medical industry — and
it’s nothing new. In 2005, H.R. 5
passed the House and then died
in the Senate. We hope that it fac-
es a similar Senate fate this year,”
Hines said. “By shielding the in-
dustry and blocking the court-
house door for patients, this bill
would make matters much worse
for the U.S. health care system
and economy. The Senate should
reject it in kind.”
House Passes Bill That Restricts Patients’ Rights
“By shielding the industry and blocking the
courthouse door for patients, this bill would make
matters much worse for the U.S. health care system
and economy. The Senate should reject it in kind.”
Christine Hines
Public Citizen’s consumer and civil justice counsel