Insurance Rates Won't Be Reduced By Limiting Rights and Harming Patients

Insurance Rates Won't Be Reduced By Limiting Rights and Harming Patients; Oppose House Bill 5 (formerly numbered House Bill 534)

While some doctors may be facing large price hikes for medical malpractice insurance, so-called "tort reform" is not the answer. Nothing in the so-called Health Act of 2005 (H.R. 5) would decrease premium costs or increase the availability of medical malpractice insurance.

California, which limited non-economic damages in medical malpractice cases to $250,000 as long ago as 1976, did not see a reduction in premium rates until after the enactment of Proposition 103, a ballot initiative that rolled back rates and provided antitrust enforcement of price-fixing and other anti-competitive insurance practices. In fact, states with caps on damages have average insurance premiums that are 9.8% higher than insurance premiums in states without caps on damages.

Even the American Insurance Association (AIA), a major insurance industry trade group, says lawmakers who enact "tort reform" should not expect insurance rates to drop. Severe limitations on medical malpractice remedies only hurt those patients with debilitating injuries while doing nothing to lower insurance rates.

H.R. 5, the so-called Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2005, would severely limit the ability of patients and other health care consumers to hold health care and medical products providers accountable. Members of Congress should not cosponsor this legislation and should oppose these provisions on the House floor.

Not just medical malpractice, but also product liability, nursing home, and insurance claim reform. The bill applies to medical malpractice, medical products, nursing homes and health insurance claims. If the proponents were truly concerned about an insurance crisis facing doctors, why does this bill cover product liability claims against pharmaceutical and medical device manufacturers, and civil actions against nursing homes, HMOs, and insurers?


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 person who contracted HIV through a negligent transfusion but learned of the disease more than five years after the transfusion would be barred from filing a claim.


An arbitrary and discriminatory $250,000 cap on non-economic damages. The bill limits non-economic damages to $250,000 in the aggregate, regardless of the number of parties against whom the action is brought. This cap is more restrictive than any state cap. Non-economic damages compensate patients for very real injuries-such as the loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain and permanent and severe disfigurement. They also compensate for the loss of a child or a spouse. These are very real damages, and juries are able to calculate them fairly. Caps on non-economic damages disproportionately affect women, children, the elderly, the disabled, and others who may not have substantial economic loss (i.e., lost wages or salary).


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.


Severe restrictions on contingent fees. The bill gives the court power to restrict plaintiff's attorney fees regardless of whether recovery is by judgment, settlement, or any form of alternative dispute resolution. The bill specifies that contingent fees, regardless of the number of plaintiffs, may not exceed:


40% of the first $50,000 recovered;
33 1/3 % of the next $50,000 recovered;
25% of the next $500,000 recovered; and
15% of any recovery in excess of $600,000.
It is unfair to restrict plaintiff's attorney fees when defendants have no such restrictions. Under the contingent fee system, lawyers are paid only if they are successful, giving plaintiffs' attorneys have a built-in incentive to accept the most meritorious cases.

Allows evidence of collateral source benefits. H.R. 5 gives defendants in medical malpractice and medical product liability 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.


Immunity from punitive damages in product liability cases. The bill completely immunizes manufacturers of drugs and devices that are approved by the FDA from punitive damages. The bill also extends immunity to the manufacturers of drugs and devices that are not FDA-approved yet are "generally recognized as safe and effective." Finally, the bill immunizes the manufacturer or seller of drugs from punitive damages for packaging or labeling defects. These broad-based immunities completely undermine patient safety by eliminating the deterrent effect of punitive damages and have no relation to issues regarding medical malpractice.


Medical products and medical provider suits must be brought separately. H.R. 5 requires that health care providers not be named as defendants in the same cases as pharmaceutical or medical device manufacturers. Further, health care providers may not be held liable to an injured patient in a class action against pharmaceutical or medical device manufacturers. Of course, these requirements do not mean that the provider was not negligent. Instead of having all parties present and allowing the jury to evaluate the evidence, this provision will allow the defendant to blame another defendant who is not a party to the case. The result will be finger pointing by wrongdoers while injured patients remain uncompensated.


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.


Preemption of State Law. The bill includes a sweeping preemption of state law. This preemption is designed to override state laws that protect consumers and patients while keeping in place state laws that favor doctors, hospitals, nursing homes, HMOs, pharmaceutical and medical device manufacturers, and other health care defendants.

Specifically, the bill preempts all areas of state law covered by the bill, including state rules regarding joint and several liability, the availability of damages, collateral sources, attorneys' fees, and periodic payments. The bill does not preempt any state defenses designed to protect health care providers. The bill would leave in place existing state damage caps on economic, non-economic, or punitive damages, but would impose the caps in the bill on states that do not have limitations on damages, including states whose limitations were struck down as unconstitutional by state supreme courts.