Thursday, February 3, 2011

House of Representatives considers medical malpractice reform

A few days ago, I reported that the general counsel for the American Tort Reform Association has suggested that one of the premises upon which a bill currently before Congress is based is false. (See here.) This lack of support for a bill that supposedly stands for everything the ATRA defends is quite telling. You can take a look at the bill, which is relatively short, by going here.

In many ways, the bill is predictable. It attempts to limit the right of victims of medical malpractice to recover for their injuries by making it difficult for them to find representation and by limiting their possible recovery. Given the level of medical malpractice errors reported, it is scary to think what would happen if the bill were adopted.

 Let me, then, summarize some of the bills more interesting aspects. The bill starts by stating that its purpose is "to improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system." Note how there are several premises to this statement: (1) that the liability system places an excessive burden on the health care delivery system, (2) that this burden results in less access to health care services, (3) that this burden results in poor quality services and (4) that adopting the bill will result in more access to services and in better services.

Then the bill continues to assert that "Congress finds that our current civil justice system is adversely affecting patient access to health care services, better patient care, and cost-efficient health care, in that the health care liability system is a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients, and is a deterrent to the sharing of information among health care professionals which impedes efforts to improve patient safety and quality of care."

Maybe Congress has "found" this, but I wonder where it did so. I can't say that I have seen every study out there, or read every article on the subject, so I am perfectly willing to be convinced. But I don't think I have seen anything that would support these conclusions. And I have seen plenty of studies that would prove the opposite.

 During the height of the debate over the health care bill, there were a number of studies and reports published that documented how tort reform efforts would not lower health costs. For links to those articles go here, here, here, here and here. For more recent reports on the issue go here and here. For links to articles criticizing the usual tort reform attempts to limit the rights of medical malpractice victims go here, here, here, here, here, here, here, here, here, here, here, here and here OR just click on the "medical malpractice" tab on the right side under the heading "search for posts by topic."

 But I digress. Let's get back to the bill itself. Here are the highlights. 

The proposed bill adopts a cap for non-economic damages of $250,000 and states that the jury will not be informed of the cap. Such a measure would disproportionately hurt seniors, the unemployed, the poor, children and women who don't have independent sources of income. Go here for more on this.

The bill also eliminates the use of "joint and several liability" as a way to apportion liability among tortfeasors thus allowing culpable parties to escape part of their responsibility to pay for damages. This is important in cases where one culpable party is not available to pay his or her share of the bill. When it comes to the apportionment of this liability, the choice is whether to favor the injured party, the tortfeasor or to divide the burden among them. Making everyone share the burden is the most fair approach. This bill, not surprisingly, however, favors those who cause the injury leaving the victims to suffer the consequences.

Next, the bill increases the burden of proof to recover punitive damages in two ways. It increases the level of evidence to "clear and convincing" (from the typical "preponderance of the evidence"). More importantly, however, the bill would recognize punitives only if the plaintiff can show intentional conduct on the part of the defendant. No longer will a plaintiff be able to recover punitives by showing an irresponsible level of disregard for safety or an unacceptable level of incompetence. Only by showing "malicious intent" or "deliberate" conduct will a plaintiff be able to recover punitives.

This essentially eliminates the possibility of recovering punitives entirely. But that is not all. In those very rare cases where punitives might be available, the amount of punitive damages would be limited to $250,000 or as much as two times the amount of economic damages awarded, which ever is greater. And, the jury shall not be informed of this limitation.

These proposals are bad enough, but hardly surprising. They have been around for a long time and, in fact, are the law in some states -without evidence that there is more access to health services or that services are better in those states, by the way. There are, however, a couple of unprecedented proposals in this bill.

First, in an attempt to prevent victims from finding legal representation to file claims to begin with, the bill states that courts will have the authority to prevent plaintiffs lawyers from recovering fees from their clients. I have heard of attempts to limit the percentage a lawyer could charge for a contingency fee before (which the bill also includes), but I had never heard of a statute that gave the court the authority to modify the agreement entered into by a lawyer and her client.

The other unprecendented proposal is that the bill attempts to take the decision regarding punitives away from the jury. The bill states that plaintiffs are precluded from asking for punitives in the complaint. They can only do so by motion which will be granted by the judge only after the judge is convinced that the plaintiff has the right to recover punitives. In other words, the plaintiff would have to convince the judge that the plaintiff should get punitives for the judge to allow the plaintiff to try to convince the jury of the same thing.

 I certainly hope this bill is defeated.


Vox Populi said...

I am coming late to your post, but I want to say that your analysis is both informative (shocking) and concise. That you for keeping interested parties abreast of the developments.

My interest in "tort reforms" are personal and intense and you have become a followed blog.

Diane said...

This is what I fear every time I hear "Tort Reform" this is not reform.

Sad, sad...