In what can be considered one of the most divisive pieces of legislation proposed in the past few years, H.R. 5, the medical malpractice liability bill has reemerged yet again after a short hiatus. This time it has gained some ground by passing narrowly in the U.S. House of Representatives and is now on its way to a Senate vote. Although it still has get through the upper house, which is much less likely, this is still a dangerous bill that will have major negative implications for many different parties, not the least of which is women.
This proposal aims to limit the liability of the health industry while restricting the legal rights of individuals and families who were injured or killed due to negligence or medical malpractice by doctors, insurers, medical manufacturers and others. Its aim is to fix the costly and ineffective liability system, while attempting to reduce “defensive medicine” and lower the cost of health care liability insurance.
In its current form, the bill would impose caps on noneconomic damages, as well as punitive damages, while also permitting defendants to be held liable for no more than their share of responsibility for a plaintiffs injuries. It also requires that damage awards be reduced by amounts plaintiffs receive from collateral sources such as health insurance, limit lawyers’ contingent fees, create a federal statute of limitations, and require that awards of future damages in some cases be paid periodically, rather than in a lump sum.
The most controversial part of this bill, the cap on noneconomic damages, was included with the intention of keeping insurance premiums down. Noneconomic damages compensate for intangible but real “quality of life” injuries, like permanent disability, disfigurement, loss of sight and loss of a woman’s reproductive system, among others. Keeping premiums down can be considered a noble goal, but the path to lower premiums will include severely inhibiting the ability those who are the worst afflicted by their injuries from receiving adequate compensation.
The exact amount they are considering is a $250,000 cap on these noneconomic damages. The basic issue this bill is missing is the fact that the more pain and suffering an individual endures, the less likely the damages received will make up for the costs. This is especially concerning for women and children and the poor, due to the higher probability that they are less likely to have economic damages in the first place, effectively limiting their ability to be fully compensated. If the cap seems like quite a low number, that is because it is. The $250k maximum was generally accepted in 1975, when this cap level was introduced in California, but now the median malpractice cases reported have costs at or above $300,000, making the $250k ineffectual in almost all cases. Cost of medical care and inflation has made this cap level inadequate for almost all serious injury cases.
The second major issue with this bill is its additional cap on punitive damages. This section of the bill attempts to severely limit punitive damages on manufacturers and distributors of medical products. Although punitive damages have developed a bad reputation, with the famous hot coffee lawsuit being a popular example of its abuse, punitive damages as an “idea” has a very strong effect on companies. This is due in part because it serves as an effective additional penalty for those accused of malicious intent or gross negligence. Having a collateral penalty for cases of serious misconduct is common in many other areas of law and medical malpractice is one area in particular that needs this due to the high number of cases that involve large companies.
If an individual, hospital or business does not have to worry about answering for their disregard of the safety and health of the people that are under their care or use their products, then it is much more likely that they will continue to make those mistakes in the future. Punitive damages are available to hold the offending party accountable, while also to deter companies from engaging in negligent behavior. It has been proven to be an effective tool for the control of socially undesirable conduct and should be kept as a major component of medical malpractice lawsuits, because it helps fill the gaps that criminal law may have left open.
This bill is overly broad and takes the exceptional cases that all of us have heard in the news and considers them as a common occurrence. This cannot be farther from the truth, with the bill severely limiting the ability for a medical malpractice attorney and their client to sue for their fair share. There are very few cases where the plaintiff is awarded disproportionate amounts of damages, along with a extremely limited number of cases that also include punitive damages. In one over-reaching stroke, this bill will negatively affect millions of individuals who are simply trying to hold the responsible parties accountable for their actions. We need to look at this issue from a fair and balanced perspective that includes a very close look at how much this will affect those who can least afford it.