Advocacy groups on both sides of the medical malpractice tort reform debate are heavily lobbying Congress about a House GOP bill to cap non-economic (pain and suffering) damages and create additional limitations in malpractice cases that involve care provided or subsidized by the federal government.

The Protecting Access to Care Act of 2017 (H.R. 1215), authored by Rep. Steve King, R-Iowa, would create a three-year statute of limitations after the injury or one year after the claimant discovers the injury, whichever occurs first, with certain exceptions.

Non-economic damages would be limited to $250,000, but would not preempt caps established by states. The bill also sets limits on plaintiff attorney contingency fees, among other provisions.

More than 80 advocacy groups against H.R. 1215 sent a letter to House Speaker Paul Ryan and Minority Leader Nancy Pelosi, contending the bill would “strip away the rights of patients” harmed by malpractice cases, as well as cases that allege harm by elder abuse, dangerous prescription drugs and defective medical devices.

"Even if H.R. 1215 applied only to doctors and hospitals, recent studies clearly establish that its provisions would lead to more deaths and injuries, and increased health care costs due to a ‘broad relaxation of care,’” the letter reads. “Add to this nursing home and pharmaceutical industry liability limitations, significantly weakening incentives for these industries to act safely, and untold numbers of additional death, injuries and costs are inevitable, and unacceptable.”

The letter cites a 2003 study by the Foundation for Taxpayer and Consumer Rights (later renamed Consumer Watchdog), which disputes the notion that California’s cap in malpractice cases has been the main reason why malpractice insurance premiums for doctors have lowered. After the cap was created by the 1975 Medical Injury Compensation Reform Act (MICRA), premiums more than quadrupled until California voters in 1988 approved Proposition 103 to regulate insurance rates. Premiums dropped 20 percent after the referendum was passed and then stabilized, according to the study.

However, the California Medical Association contends the 1975 California malpractice law is “an effective way of limiting frivolous lawsuits and keeping health care costs lower.”

The group writes that trial lawyers have been trying for decades to raise the cap so they personally can collect more. Indeed, after failing several times in the state legislature, trial lawyers placed a referendum to raise the cap on the 2013 election ballot, but 67 percent of the voters rejected it.

“MICRA is the best reason why California has not experienced the regular medical liability crisis suffered by physicians in other states,” the CMA writes on its website. “It is a seven-part law where all parties involved with medical liability contributed to a compromise solution that best serves the interest of patients. As a result of MICRA, California has a system that is affordable, gives patients their full economic and medical losses, promotes patient safety and improved patient care, supports teaching hospitals and positions, and permits innovative and experimental medicine.”

John Finkenberg, a California orthopedic surgeon and president of National Association of Spine Specialists, writes in The Hill that the House GOP’s H.R. 1215 is modeled after the “successful” California law, and health care specialists nationwide are calling on the House to pass it.

“First and foremost, the bill fully compensates deserving patients for all economic damages,” Finkenberg writes. “It would cover past and future medical expenses, past and future lost wages and earning potential, rehabilitation costs, household services, out-of-pocket expenses — and up to an additional $250,000 for non-economic damages, such as those awarded for pain and suffering.”

The bill “ensures that patients, not lawyers, are appropriately compensated for medical injuries, and will save taxpayers billions of dollars — all while increasing timely access to healthcare,” he adds.

An article posted on the Medical Economics blog on the Modern Medicine Network says, currently, malpractice claims are lower than they were several years ago, but the trend tends to cyclical, according to David Studdert, professor of medicine and law at Stanford University.

According to data from The Doctors Company, a medical malpractice insurer, the average premium for malpractice insurance was $15,000 in 2006 and $8,000 in 2016. In 2006, the average number of claims per 100 doctors was nine; in 2016 it was seven. The average claim value in 2006 was $68,000 ($82,000 after adjusting for inflation), while in 2016 it was $100,000.

However, malpractice insurance premiums vary widely across states, depending in part on whether there are caps on non-economic damages, and how high those caps are set, the article cites Arthur J. Gallagher & Co. brokerage firm.

For example, Kansas has a $250,000 cap on non-economic damages, while Maryland has a cap of $770,000 that increases $15,000 annually. Malpractice insurance for internists in Kansas averaged $5,500 in 2016, while rates in Maryland averaged $14,200 annually.

Thirty-three states have established some sort of cap on non-economic damages, but experts tell Medical Economics there is a need for a federal law to create nationwide uniformity.

“Even though medical liability is a state law issue, given the role the federal government plays in healthcare, it is clear that Congress has a constitutional basis of redressing the issue,” says Sherman Joyce, president of the American Tort Reform Association.

Putting caps on non-economic damages likely faces an “uphill battle” in the Senate due to vigorous opposition by trial lawyers and consumer advocacy groups, experts tell Medical Economics — already seen by the letter the 80 groups recently sent to the House leadership.

One way to garner bipartisan support for malpractice reform would be to focus on “defensive medicine” and how it impacts overall costs, experts tell Medical Economics.

“Reducing defensive medicine might be something both parties can agree on, because practicing defensive medicine makes it harder for providers to get to their value-based care targets,” says Anand Parekh, internist and chief medical adviser for the Bipartisan Policy Center, a Washington, D.C.-based think tank.

Instant Insights /

Proposed House bill fires up medical malpractice debate

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