Legislative Alert: The New Congress' Efforts to Erode Medical Malpractice Laws

The 112th Congress has been in session for only a few weeks, but it seems intent upon changing medical malpractice liability laws. The House Judiciary Committee's first hearing was entitled "Oversight Hearing on Medical Liability Reform - Cutting Costs, Spurring Investment, Creating Jobs." And only a few days ago, Rep. Phil Gingrey, Republican from Georgia, introduced H.R. 5, the Health Act.

This bill can be dangerous to all of us who consume medical services, because it is so broad. It applies to all health care providers, regardless of the theory of liability. It also applies to cases against the pharmaceutical, nursing home, and insurance industries. The bill preempts state law that is more protective of patients while keeping in place state law that favors medical providers.

H.R. 5 is on a fast track. Here are some of its major points. As I said, it is very broad. It covers not only doctors and hospitals but also nursing homes, the pharmaceutical industry, and insurance giants. It reduces the amount of time an injured patient has to file a lawsuit to just one year from the date an injury was discovered or should have been discovered. It limits the non-economic damages to $250,000 regardless of the amount of suffering inflicted on the injured person or a deceased patient's survivors.

That might sound like a lot of money, but consider the type suffering that Rep. Gabrielle Giffords from Tucson has experienced and will continue to suffer during her coming months of rehabilitation and possibly the rest of her life. It is a pittance in comparison. Her circumstances happen to be from a bullet, but the same effects are seen every day from medical and nursing home malpractice.

The bill also completely eliminates joint liability where several defendants' poor judgment and substandard care contributes to an injury or death. This means that longstanding principles of fairness to the victim are sacrificed to the economic benefit of one or more perpetrators of the negligent care.

The bill also limits punitive damages to $250,000 or two times the amount of economic damages, whichever is greater. Since punitive damages laws presently in place are thought to deter grossly negligent conduct by nursing homes, hospitals, and doctors, the new bill would make it more economically feasible for those defendants to engage in irresponsible conduct to the detriment of their patients, including you and me.

The bill also completely immunizes manufacturers of drugs and medical devices that are approved by the FDA from punitive damages. The FDA doesn't have the funding or the manpower to ensure the safety of drugs and devices, especially when a manufacturer covers up reports of adverse reactions of drugs or failures of medical devices. Nevertheless, under this bill, those manufacturers would be protected. The deterrent effect of punitive damages would be removed from the equation. We live in dangerous times, perhaps more so when legislatures and Congress are in session.

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