Lobbyists for medical professionals have been fighting long and hard as an advocacy group to help medical professionals defend their professional decisions and reputations when it comes to medical malpractice claims without merit. Just recently a bill was approved by the House Judiciary Committee to cap certain medical malpractice payments at $250,000 nationwide.
The Protecting Access to Care Act (HR 1217)
The Protecting Access to Care Act, which was just introduced, would place limits on pain and suffering damages that doctors, hospitals and nursing homes pay out in medical malpractice suit. At the same time, this pending legislation does not place caps on economic damages like medical expenses or lost wages. Some states already have legislation in place capping awards. These new changes haven’t pleased patient advocacy groups or Democrats. As a matter of fact, it has caught many off guard. Some Democrats introduced amendments to the proposal but were rejected.
Access Act of 2017 (HR 1704)
This bill would also mitigate liability in health care. Specifically, it:
- Removes sympathy or apologies as evidence of negligence in health care
- Requires 90 day notice before initiating a medical malpractice suit
- Requires lawyers alleging medical malpractice to submit an affidavit of merit signed by a health care professional outlining actions that should have been taken or omitted
- Limits expert medical witnesses to be in the same specialty. In addition, expert medical witnesses must be either actively teaching or practicing medicine.
This type of tort reform is intended to reduce medical costs, and it has three essential components.
- Making it more difficult for family members of deceased patients or injured patients to file medical malpractice suits
- Limiting the type of evidence and expert testimony used to support claims
- Capping the amounts of money victims can receive for noneconomic damages, punitive damages or total damages
Some states are fighting the federal legislation. In June of 2017, the Florida Supreme Court ruled the current laws on caps involving medical malpractice suits are unconstitutional. Although these caps are supposed to be a remedy for the crisis of high insurance premiums, it’s often the plaintiffs who suffer the most drastic injuries who suffer. This was the argument of a four-member team in the Florida high court. It was also argued that there is no evidence of a continuing medical malpractice insurance crisis justifying arbitrary discrimination. This recent ruling stemmed from a 2008 lawsuit involving a patient who had surgery for carpal tunnel syndrome and wound up with a perforated esophagus due to tube inserted during the procedure. This plaintiff was awarded $4 million in non-economic damages by a jury. However, that award was reduced to $2 million due to the caps.
The Healthcare Community
The entire health care community, including doctors, have been desperate for tort reform and change. “In a Medical Economics survey, 89% of doctors indicated they wanted the Trump administration to address tort reform, with 84% saying they feel pressured to practice defensive medicine and 87% saying they work under the constant threat of a lawsuit.” If you have a system that is paid for by blame, even sometimes when a doctor has done nothing wrong, then it’s structured wrong,” says Susan Osborne, DO, a primary care physician in rural southwest Virginia.” Furthermore, “While the states may have oversight of the issue now, some experts see the 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, JD, president of the American Tort Reform Association.
Without a doubt, for physicians who are under the constant threat of a lawsuit, these new reforms are encouraging. It’s a lifetime threat, and it’s difficult for doctors not to think about it. After all, it can affect their career, reputation and wallet.