Federal Medical Malpractice Reform Hurts Health Care Patients

March 13, 2017

Congress is considering a bill to reform medical malpractice lawsuits called the Protecting Access to Care Act. Despite its well-intentioned name, the legislation would gut patient's rights here in Pennsylvania and around the country.

The bill is a misguided effort to blame the high costs of health insurance and health care on the attorneys who fight daily for victims of medical errors. It does so by reducing the amount of time a patient has to sue, limiting pain and suffering to $250,000, reducing joint liability among tortfeasors, and decreasing contingency fees for attorneys.

The reality of the situation is that this solution tackles the wrong side of the problem. It would be best to stop this cost from escalating by ensuring that medical malpractice never happens at all. A study conducted at Johns Hopkins Medicine found medical errors were the third leading cause of death and called for the Centers for Disease Control and Prevention to add it to its annual list of the top causes of death. The study estimated that more than 250,000 Americans die from medical errors each year. If Congress wanted to limit the costs of medical malpractice, it should start by limiting the number of mistakes made by doctors and hospitals.

Instead, the changes imposed by the Protecting Access to Care Act make us wonder if the whole country is headed toward a Wisconsin-like system. A few years ago, the Milwaukee Journal Sentinel did an article about how tort reform there had made it nearly impossible to find an attorney willing to take on a medical malpractice lawsuit. Because of the constraints imposed on plaintiffs, defendants are willing to take cases to trial without early settlement. There is little downside for them since their maximum loss is $1 million.

For those that manage to win, Congress has proposed that non-economic damages should be capped at an amount set in 1975!! The law is modeled on California's tort reform, which placed a $250,000 cap on such damages in medical malpractice lawsuits in 1975. If that amount was adjusted for inflation, it would be just north of $1.1 million in 2017. If there is going to be a cap for non-economic damages, it needs to be far higher.

The law also requires drastic cuts to attorney fees for trial lawyers in medical malpractice cases. Instead of allowing an attorney and their potential client to negotiate the contingency fee in a free market, the law imposes a sliding scale based on the amount of the recovery. For a settlement or verdict of $1 million, the amount is set at a maximum of $215,000. While this might sound like a large amount of money compared to the average salary in America, it would be a difficult amount to garner interest from among talented attorneys to represent patients on a contingency fee basis. This is particularly true if every case required a jury verdict and appeal.

On the opposite side, the law does nothing to prevent the party committing malpractice from unlimited spending to win. Malpractice insurers, doctors and hospitals will have access to the best lawyers and the best experts because they already have the most resources. And they will have no caps on the amount that they can spend in hiring their lawyers.

The law supposedly takes aim at frivolous lawsuits. However, those will not be the people that are impacted if the Protecting Access to Care Act is passed. It will be the patients who suffered from true medical errors and are unable to find a lawyer because of the system implemented by Congress.

If you agree, please call or write your representatives in the House and Senate and tell them. Find their contact information here.