Right now, Congress is considering several proposed laws under the banner of “tort reform” that if enacted into law, will work to protect profits at the expense of injured victims and their families.
Those who advocate for the seriously injured as well as victims of wrongful death are very concerned about the impact these laws could make on personal injury lawsuits, specifically, as well as the overall sanctity of civil litigation in state forums.
Four Pending Laws before Congress
Today, we consider the proposed “Protecting Access to Care Act.” If passed, it will apply to any medical malpractice lawsuit where the insurance coverage comes through any kind of federal program, subsidy, or tax benefit.
This means that any Obamacare (Affordable Care Act) policy would be covered by this law. So would Medicare, Medicaid, and insurance coverage provided to federal employees and military personnel.
In our next post, we will discuss the potential harm to accident victims and their loved ones in (1) the Lawsuit Abuse Reduction Act; the Fairness in Class Action Litigation Act, and (3) the Innocent Party Protection Act.
What Does the Protecting Access to Care Act propose?
The medical profession is promoting this legislation, along with its medical malpractice insurance carriers. The argument is doctors have to pay so much in medical malpractice coverage that they are leaving the profession.
If this legislation (HR 1215) becomes law, it will do several things to help malpractice insurance carriers save money.
1. Cap on Pain and Suffering and Other Non-Economic Damages
If the Protecting Access to Care Act is passed, it will place a cap on any medical malpractice damage award at $250,000 for noneconomic damages.
This is very important, because “noneconomic damages” includes pain and suffering.
In a serious medical error, it’s outrageous to think that $250,000 will cover the pain and suffering the injured victim will experience over the course of their lifetime (much less their other noneconomic damages, like the loss of enjoyment of life.)
Right now, there is no federal cap on the amount of noneconomic damages that can be awarded in a lawsuit filed against a medical professional for his or her mistake or negligence.
2. Federal Deadline to File a Malpractice Lawsuit
The proposed Protecting Access to Care Act does more than set up limits on financial responsibility that comes with a serious medical mistake. It also sets up a federal deadline for the malpractice victim to file a lawsuit for justice.
Under the Protecting Access to Care Act, a “statute of limitations” is established for adult victims of medical errors as well as for minor victims.
If an adult is seriously harmed by the negligence of a medical professional, then they will have the earlier deadline: either (a) three (3) years from the date of the injury or (b) one (1) year after its discovery.
For someone who is severely harmed and suffering from medical malpractice, having a single year to gather the strength to decide to sue, to hire a lawyer, and to file a lawsuit is shockingly short. Many victims likely will be barred from justice based upon this one-year deadline.
If the victim is a minor child, then the deadline is three (3) years after the injury. If the victim is a minor child under the age of 6 years old, then the deadline is the later of these three dates: (a) three (3) years after the injury; (b) one year after its discovery; or (c) the child’s 8th birthday.
3. Class Action Bar for Doctors in Products Liability Cases
Finally, the proposed Protecting Access to Care Act would protect insurance carriers from the fear of facing a class action lawsuit based upon medical malpractice.
Under the proposed law, victims could not sue doctors and health care providers in class action lawsuits based upon product liability laws involving drugs or medical devices that have had the approval of the Food and Drug Administration (FDA).
So, if the injured victim is among many who have been victims of flawed or defective medical devices or drugs, they cannot sue their doctors or medical providers in any class action litigation seeking justice for their harm. The defendants can include the manufacturer, distributor, etc., of that device or drug — but not the doctor or medical provider who chose to use it.
Grave Injustice Will Result if This Law is passed
Many who advocate for injury victims and their families are concerned and shocked by this proposed legislation.
- Some call it insulting.
From the President of the American Association for Justice (AAJ):
“This insulting proposal does nothing to help Americans access safe, affordable health care. Instead, H.R. 1215 would punish patients who are injured or killed by even the intentional acts of a health care provider….
“States should have the right to decide how to best protect their citizens through patient safety liability laws, but H.R. 1215 is a sweeping federal takeover of this important state function.”
- Some warn how it protects evildoers from justice like sexual predators.
The Center for Justice & Democracy warns how this law will protect victims of sexual assault and physician sexual abuse.
In its March 22, 2017, article “Congress Moving to Protect Doctors Who Abuse and Assault Children,” the CJD discusses a recent expose published by the Atlanta Journal-Constitution.
The Atlanta newspaper researched cases of sexual abuse by doctors in every state (including Indiana and Illinois). The result: evidence of “[r]apes by OB/GYNs, seductions by psychiatrists, fondling by anesthesiologists and ophthalmologists, and molestation by pediatricians and radiologists.”
Criminal charges are rarely brought based upon physician sexual abuse. The expose explains clearly how a civil lawsuit, seeking noneconomic damages in a personal injury case by the injured victim, is the main avenue for justice in these cases.
This, as the CJD points out, will be hampered if not entirely blocked, by this proposed federal legislation. Read the full series by the Atlanta Journal-Constitution here.
Status of the Protecting Access to Care Act
As of the date of this post, the legislation had passed the House and is being considered by the Senate. The White House has already voiced its support of this piece of federal tort reform, so if the bill reaches the President’s Desk it is expected to be signed into law.
____________________
In our next post, we focus on three other proposed federal “tort reform” laws and how injury victims in Indiana and Illinois can be harmed if they are passed. Let’s be careful out there!
