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Playing Politics With Patients’ Rights, the House Passes Dangerous Malpractice Bill; Senate Should Reject It

House Republicans today passed a radical federal bill that not only would restrict injured patients’ ability to pursue legal claims against negligent medical providers that harm them, but also would decimate state laws meant to protect them.

H.R. 5, the Protecting Access to Healthcare (PATH) Act, was the result of a political maneuver by the Republican leadership to combine restrictive medical liability legislation – the  misnamed Help Efficient, Accessible, Low-cost, Timely Healthcare Act – to a second bill that would repeal the Independent Payment Advisory Board, an element of the Affordable Care Act created to curb Medicare spending.

The medical liability portion of the bill is an affront to patients. The House-passed bill would shield nursing homes, hospitals, insurance companies, physicians and pharmaceutical and medical device manufacturers from legal accountability for any misconduct. The bill is so extreme that it even drew opposition from the California Medical Association, a group that traditionally supports medical liability limits.

The bill imposes an arbitrary and inhumane $250,000 cap on non-economic damages in the legislation, which would have a disproportionate impact on those with little or no earned income, such as children, full-time mothers and seniors. It also would dismiss longstanding state laws on medical malpractice liability, including policies that have held that certain liability restrictions violate their state constitutions. Most notably, the bill would override those states whose laws are protective of patients’ rights.

The bill also includes harmful provisions that would:

(1) Leave patients without compensation for the share of damages assigned to an uninsured, underinsured or bankrupt defendant;

(2) 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;

(3) Cap only patients’ attorney fees while leaving a “sky is the limit” blank check for health industry fees;

(4) Shorten the time frame in which a patient can file a claim; and

(5) Limit punitive damages for all health industry participants, including drug and medical device manufacturers, which eliminates a critical incentive against the most egregious types of misconduct.

Yesterday, Reps. Phil Gingrey (R-Ga.) and Lamar Smith (R-Texas) suggested in debate that the bill would cut health care costs and create jobs. But the facts suggest they are dead wrong. While health care costs rose in the past decade, medical malpractice litigation and costs dropped to its lowest levels on record. Meanwhile, the number of patients injured by medical errors remains at a critical level. An April 2011 study published in Health Affairs (http://healthaffairs.org/blog/2011/04/07/new-health-affairs-hospital-errors-ten-times-more-common-than-thought/) concluded that medical errors or adverse events occur in nearly one of three hospital admissions, and the federal government estimated that medical errors cost the Medicare program – not including non-Medicare recipients – more than $4 billion a year.

Although wrapped in a political ploy this year, this medical industry giveaway is not new. Most recently in 2005, H.R. 5 passed the House and then died in the Senate. It must face a similar Senate fate this year.

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.

Christine Hines, Consumer and Civil Justice Counsel, Public Citizen’s Congress Watch Division