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Steven J. Klearman
Steven J. Klearman
Attorney • (800) 880-5297

New Bill With an Old Story

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This from People Over Profits:

Once again, without any hearings and without following normal Senate procedure, the Senate Majority Leader plans to bring to the floor S. 22, the so-called “Medical Care Access Protection Act of 2006.” S. 22 contains many of the same limits found in earlier bills, also brought to the floor with no hearings. It contains the same elimination of injured patients’ rights to hold wrongdoers accountable, and the same big protections for hospitals and HMOs. Touted as a “new” proposal, proponents hope to trick Congress and the public into believing this bill is significantly better for patients than the bills the Senate voted on, but did not pass, three times in the last Congress. But nothing in this “new” proposal will provide health insurance to the uninsured, lower healthcare costs, increase the availability of affordable medical malpractice insurance, or make patients safer. Their proposal:

Still applies a cap of $250,000 on non-economic damages. Proponents claim this bill is different because it is theoretically possible for a patient to recover up to $750,000 dollars, but only if the patient has the extreme misfortune of being hurt by at least two different “healthcare institutions” as well as a health care provider.” If a patient’s harm is caused by the negligence of more than one provider however, the aggregate cap is still $250,000. Here is the truth about the “new” cap:

For health care providers: the bill still has a cap of $250,000 on what a patient can recover from all negligent “healthcare providers.” So even if multiple providers are at fault, there is still a $250,000 aggregate cap on what a patient can recover. “Healthcare providers” include all physicians, nurses, dentists, pharmacists, optometrists, chiropractors, and podiatrists.

For health care institutions: patients can only recover $250,000 for each “health care institution,” such as a hospital, nursing home, or assisted living facility that caused them harm, but only up to $500,000 total, regardless of how many negligent entities were involved. “Health care institution” is broadly defined as “any entity licensed under Federal or State law to provide health care services,” and includes hospitals, nursing homes, hospices, assisted living facilities, and ambulatory centers.

What this means for patients: In most cases, a cap of $250,000 will still apply. Only those extremely unfortunate patients who have suffered harm from at least three different entities, two of which must be “healthcare institutions,” would be eligible for the $750,000 cap. Limiting compensation for serious injuries-such as the loss of fertility, the loss of mobility, excruciating pain and permanent and severe disfigurement, or the loss of a child–is fundamentally unfair to injured patients and their families.

Still Preempts State Law. Despite its deliberately misleading language, this bill does not ensure “state flexibility” or the “protection of states’ rights.” In fact, it provides for a sweeping preemption of state law. While S.22 does not preempt state laws which cap damages, S.22 does preempt all other areas of state law covered in the bill, including state rules regarding joint and several liability, the availability of damages, collateral sources, standards for qualifying expert witnesses and periodic payments. These areas that S.22 explicitly preempts are safeguards designed to protect injured patients. Ironically, though, the bill does not preempt any state laws that favor doctors, hospitals, nursing homes, HMOs, and other health care defendants. Furthermore, S.22 would impose the caps on states that do not have limitations on damages, including even states whose limitations were struck down as unconstitutional by state supreme courts.

Still applies to nursing homes, assisted living facilities, and hospitals. Proponents claim their bill is about protecting doctors, but the provisions are broadly drafted to specifically sweep in all cases against nursing home corporations, assisted living facilities, hospitals, and many HMOs. If the proponents were truly focused on doctors, why does this bill cover civil actions against nursing homes, assisted living facilities, hospitals and many HMOs?

Reduced statute of limitations. The legislation reduces the amount of time an injured patient has to file a lawsuit to one year from the date the injury was discovered or should have been discovered, but not later than three years after the “manifestation” of injury. This statute of limitations, which is much more restrictive than a majority of state laws, would cut off meritorious claims involving diseases with long incubation periods. Thus, a mother or baby who contracted HIV through a negligent transfusion during the birth of the baby, but learned of the disease more than five years after the transfusion, would be barred from filing a claim.

Elimination of joint liability for economic and non-economic damages. The bill completely eliminates joint liability, thereby upending the law in many states. Under joint liability, injured patients are compensated fully for their loss. Joint liability enables an individual to bring one lawsuit against the entities responsible for practicing unsafe medicine or manufacturing a dangerous, defective product and have the defendants apportion fault among themselves, if the jury finds for the plaintiff. Our civil justice system has determined that it is the injured patient-not multiple negligent medical providers-who deserves the greatest measure of protection.

Allows evidence of collateral source benefits. The bill gives defendants in medical malpractice cases an absolute right to introduce evidence of “collateral source” benefits. While the plaintiff can then introduce evidence of amounts paid to secure that benefit, this rule allows the wrongdoer to profit from the plaintiff’s prudent investment in insurance. If doctors want evidence of the injured patient’s collateral sources admitted at trial, then the extent of the doctor’s own liability insurance should also be admissible.

Severe restrictions on punitive damages. The bill provides that punitive damages may only be awarded if the plaintiff proves by an impossibly heightened standard of “clear and convincing” evidence that (1) the defendant acted with malicious intent to injure the plaintiff or (2) the defendant understood the plaintiff was substantially certain to suffer unnecessary injury, yet deliberately failed to avoid such injury. The bill does not create punitive damages in those states that don’t recognize them. The bill further limits punitive damages to two times the amount of economic damages or $250,000, whichever is greater.

Heightened pleading standards for punitive damages. Punitive damages may not be sought by the plaintiff initially. At the court’s discretion, a plaintiff may be allowed to file an amended pleading for punitive damages only after a finding by that court that there is a substantial probability that the plaintiff will prevail.

Periodic payments of all future damages. Allowing all future damages over $50,000 to be paid periodically punishes meritorious plaintiffs who were injured by malpractice and unsafe products and leaves them vulnerable and under-compensated. Meanwhile, large insurance companies reap the interest benefits of a plaintiff’s jury award.

Mandatory federal procedures for state courts. The bill mandates that all federal and state courts apply the Federal Rule 11, which deals with attorney sanctions, to all cases covered by the Act. The bill also goes a step further and makes these sanctions mandatory rather than discretionary. First, most states already have already enacted their own version of Federal Rule 11, including sanctions, according to their individual state rules and procedures. These courts should not be forced to apply a mandatory federal sanction that distorts a mechanism they already have in place. Also, federal judges overwhelmingly agree that Federal Rule 11 operates more efficiently and fairly when the rule is discretionary rather than mandatory. Nonetheless, without following normal procedures, the bill would swoop down and simply reverse federal judicially-approved changes, returning Federal Rule 11 to the way it was from 1983 through 1993. For those 10 years that mandatory sanctions were in effect, litigation surrounding Federal Rule 11 significantly increased adding substantial time and cost to all litigation proceedings.