The Republican-controlled House today passed a bill that would cap noneconomic damages in medical malpractice lawsuits at $250,000 and introduce other tort reforms long supported by organized medicine for the sake of dampening litigation.
The vote was 218 to 210, mostly along party lines.
The bill, called the Protecting Access to Primary Care Act (PAPCA), now faces an uphill challenge in the Senate, where Democrats can filibuster what they view as infringement on injured plaintiffs’ rights as well as state prerogatives.
The nonpartisan Congressional Budget Office (CBO) estimates that PAPCA will achieve, more or less, what its authors intended it to do. A CBO analysis projects that the bill will lower premiums for medical malpractice insurance and ease the pressure on physicians to practice defensive medicine with all its unnecessary services.
Overall, the bill would decrease national health spending by 0.4% and save the federal government almost $50 billion over the next 10 years. The estimate takes into account that many states have already enacted similar measures, which PAPCA supporters say have deterred frivolous lawsuits and improved access to care. They credit a PAPCA-style law in Texas with reversing an exodus of physicians who were scared of being sued.
Caps on noneconomic damages are on the books in 22 states, according to the PIAA, the trade association for medical liability insurers. Another five states limit total damages for injured malpractice plaintiffs, while Ohio limits economic damages. Other states have chosen not to establish such caps or else have seen them struck down as unconstitutional. That just happened earlier this month to a Florida law that capped noneconomic damages in malpractice cases at $500,000, or $1 million in the case of catastrophic injuries. The state high court called the restrictions arbitrary.
PAPCA is based on a landmark tort reform law enacted by California in the 1970s. In addition to capping noneconomic damages, the House bill would:
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Impose sliding-scale limits on the contingency fees of plaintiffs’ attorneys. They could receive only 40% of the first $50,000 awarded to an injured patient, 33% of the next $50,000, 25% of the next $500,000, and 15% of damages topping $600,000.
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Exempt clinicians who order a drug or medical device from class-action or product-liability lawsuits.
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Pay damages in installments instead of all at once when they exceed $50,000.
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Replace joint-and-several liability with a Fair Share rule. Under joint-and-several liability, a plaintiff can recover all court-awarded damages from one of several defendants, even if he or she is only partly responsible for the injury. The Fair Share rule divvies up damages among multiple defendants based on their percentage of responsibility.
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Encourage speedy resolution of claims. The statute of limitations for a malpractice suit would be 3 years after the date of the wrongful act, or 1 year after the plaintiff discovers it, whichever comes first.
“Anything to Which a Receipt Can Be Attached”
PAPCA asserts a federal interest in malpractice litigation that normally is governed by state law. The bill would apply its various reforms to lawsuits in which the plaintiff received healthcare that was covered somehow through the federal government. It can be through a program such as Medicare or Medicaid, a premium subsidy for a private health plan under the Affordable Care Act, or even an employer-sponsored plan, since the premiums enjoy a federal tax exemption.
A type of lawsuit that PAPCA seemingly would not affect is one brought against a physician by a patient who pays for his or her care entirely out of pocket.
Like other supporters of the bill, Rep Bob Goodlatte (R-VA) noted today that it does not limit economic damages suffered by a plaintiff, such as the cost of medical care, or lost earnings, past and future. “Anything to which a receipt can be attached,” said Goodlatte, the chair of the House Judiciary Committee, in the debate preceding the vote.
Rep. John Conyers Jr (D-MI), the ranking member of the House Judiciary Committee, made the case against PAPCA on the House floor today. Conyers said that the $250,000 cap was unfair to women, children, the poor, and other members of society who are less able to claim lost earnings or other quantifiable economic losses. He pointed to the example of a woman losing her fertility because of a botched procedure. “There are so many problems with this bill,” Conyers said.
While the American Medical Association and other medical societies lobbied for the House bill, a coalition of consumer watchdog groups such as Public Citizen, labor organizations such as the AFL-CIO, and various healthcare and legal groups urged lawmakers to defeat it. In a letter to House leadership, they warned that PAPCA would weaken incentives for the medical professional to act more safely, interfere with the work of state court judges and juries in an unprecedented manner, and “provide relief and protections for the insurance, medical, and drug industries, at the expense of patient safety.”
Follow Robert Lowes on Twitter @LowesRobert
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