Advocacy groups on both sides of the medical malpractice tortreform debate are heavily lobbying Congress about a House GOP billto cap non-economic (pain and suffering) damages and createadditional limitations in malpractice cases that involve careprovided or subsidized by the federal government.

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

Non-economic damages would be limited to $250,000, but would notpreempt caps established by states. The bill also sets limits onplaintiff attorney contingency fees, among other provisions.

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

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

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The letter cites a 2003 study by the Foundation for Taxpayer and ConsumerRights (later renamed Consumer Watchdog), which disputes the notionthat California’s cap in malpractice cases has been the main reasonwhy malpractice insurance premiums for doctors have lowered. Afterthe cap was created by the 1975 Medical Injury Compensation ReformAct (MICRA), premiums more than quadrupled until California votersin 1988 approved Proposition 103 to regulate insurance rates.Premiums dropped 20 percent after the referendum was passed andthen 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 healthcare costs lower.”

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The group writes that trial lawyers have been trying for decadesto raise the cap so they personally can collect more. Indeed, afterfailing several times in the state legislature, trial lawyersplaced 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 theregular medical liability crisis suffered by physicians in otherstates,” the CMA writes on its website. “It is a seven-part lawwhere all parties involved with medical liability contributed to acompromise solution that best serves the interest of patients. As aresult of MICRA, California has a system that is affordable, givespatients their full economic and medical losses, promotes patientsafety and improved patient care, supports teaching hospitals andpositions, and permits innovative and experimental medicine.”

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

“First and foremost, the bill fully compensates deservingpatients for all economic damages,” Finkenberg writes. “It wouldcover past and future medical expenses, past and future lost wagesand earning potential, rehabilitation costs, household services,out-of-pocket expenses — and up to an additional $250,000 fornon-economic damages, such as those awarded for pain andsuffering.”

The bill “ensures that patients, not lawyers, are appropriatelycompensated for medical injuries, and will save taxpayers billionsof dollars — all while increasing timely access to healthcare,” headds.

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

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

However, malpractice insurance premiums vary widely acrossstates, depending in part on whether there are caps on non-economicdamages, and how high those caps are set, the article cites ArthurJ. 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 $15,000annually. Malpractice insurance for internists in Kansas averaged$5,500 in 2016, while rates in Maryland averaged $14,200annually.

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

“Even though medical liability is a state law issue, given therole the federal government plays in healthcare, it is clear thatCongress has a constitutional basis of redressing the issue,” saysSherman Joyce, president of the American Tort ReformAssociation.

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

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

“Reducing defensive medicine might be something both parties canagree on, because practicing defensive medicine makes it harder forproviders to get to their value-based care targets,” says AnandParekh, internist and chief medical adviser for the BipartisanPolicy Center, a Washington, D.C.-based think tank.