In late June, the House of Representatives passed a bill that would impose a number of restrictions on malpractice litigation, including a $250,000 cap on noneconomic damage awards. Click here to read our original report on the vote. In this follow-up, we check on what has happened to the bill since then.
Proponents of medical malpractice liability reform achieved a victory this past summer with the House’s passage of a bill capping non-economic damage awards at $250,000, but efforts to move the bill along in the Senate have not met with any luck to date.
The bill, known as the Protecting Access to Care Act, passed the House in late June by a vote of 218-210; it would apply only to cases involving services covered wholly or partly by federal insurance programs such as Medicare, Medicaid, and the Federal Employee Health Benefits Program.
The bill would implement the damage cap in states that do not already have a cap. The bill would also:
- Set a statute of limitations for filing malpractice suits at 3 years after the date of the injury, or 1 year after the plaintiff discovers — or should have discovered — the injury
- Repeal the “collateral source” rule, which says that damages a plaintiff receives cannot be reduced due to payments they are receiving for their injury from someone other than the defendant (such as worker’s compensation)
- Ban “joint and several liability” in successful suits, which makes each individual defendant fully responsible for paying the entire damage award if others can’t pay
- Limit attorneys’ contingency fees in malpractice cases
- Prohibit successful plaintiffs from receiving jury awards in a lump sum
- Ban hospitals and healthcare providers from being named in lawsuits involving allegedly unsafe drugs, regardless of whether the hospital or provider was negligent in prescribing or administering the drug
No Senate Action Yet
The Senate hasn’t done anything with the bill, and medical organizations are hoping that it will move forward. “The American Academy of Family Physicians (AAFP) has consistently supported medical liability reform that protects patients, discourages frivolous lawsuits and ultimately reduces defensive medicine that, in itself, can cause harm,” AAFP president Michael Munger, MD, said in a statement sent to MedPage Today. “We currently support the Protecting Access to Care Act of 2017, which contains policies that the AAFP advocates.”
“While medical liability should compensate patients who have been truly injured, the current system does not serve them well. Too much money is diverted from patient care to liability insurance premiums and the legal fees that are part of a lawsuit,” he continued. “Worse, unnecessary tests that comprise defensive medicine are both costly and potentially harmful.”
Munger noted that the AAFP has called for a cap on non-economic damages and limits on attorney’s contingency fees. “We also support a requirement that juries know about earlier insurance payments to patients. If the jury decides to award damages to a patient, the award should be reduced by the amount of money the insurance company has paid to that patient. And we support the replacement of joint and several liability with proportionate liability in a malpractice award. This would require each party to pay a share that is based on the percentage for which they are liable.”
Senate Presents Unique Challenges
The American Congress of Obstetricians and Gynecologists (ACOG) is also supporting passage of the bill. “We are dedicated to reforming our medical liability system to increase patient safety, ensure that injured patients are compensated quickly and fairly, improve provider-patient communications, and ensure affordable and accessible medical liability insurance,” the group said in a letter to House Speaker Paul Ryan (R-Wisc.) that was sent prior to the House vote; it was jointly signed by ACOG and 32 other medical groups.
“The Protecting Access to Care Act achieves all of these goals. This legislation adopts many of the reforms which have been thoroughly tested in the states and which have proven successful in improving the medical liability climate in those states.”
The Health Coalition on Liability and Access (HCLA), a group of organizations that support liability reform, is also doing a push for a Senate version of the bill, according to HCLA chair Michael Stinson. “HCLA is currently focused on reaching out to senators who have expressed interest in this topic to seek introduction of a Senate version,” he wrote in an email. It was the HCLA that organized the letter to Ryan.
“Once a bill is introduced, we will work with the Senate Judiciary Committee to determine prospects for committee action,” Stinson continued. “We recognize that the current partisan environment makes enactment of federal medical professional liability reforms an uphill battle in the Senate, but we remain committed to advancing true reform legislation if at all possible.”
The possibility of a filibuster is one of the unique challenges of trying to get a bill through the Senate, he added. “[That] would undoubtedly be used if we actually got a bill to the floor. More generally, the fact [is] that any one senator can gum things up in that chamber, whereas in the House it’s much easier for a narrow majority to ‘force’ a bill through to passage.”
Other Bills in Play
The American Association of Neurological Surgeons (AANS), one of the other groups signing the letter, continues to push for the bill, said Katie Orrico, the group’s spokeswoman, in an email. “We are continuing to identify potential sponsors for similar legislation and/or encourage the Senate to take up the House-passed version. We recognize that passing comprehensive medical liability in the U.S. Senate is a challenge, the AANS is nevertheless working to make this happen — particularly since the White House has signaled that it would support signing medical liability reform into law.”
In addition to the Protecting Access to Care Act, the AANS is focusing on several other medical liability bills, she said. These include:
- H.R. 302, the Sports Medicine Licensure Clarity Act. The bill passed the House by voice vote on Jan. 9, 2017 and is now pending before the Senate, Orrico noted. The legislation provides protections for certain sports medicine professionals who provide certain medical services in a secondary state.
- H.R. 548/S. 527, the Health Care Safety Net Enhancement Act. This bill has 57 cosponsors in the House and three in the Senate. The legislation provides liability protections to physicians providing services mandated by the Emergency Medical Treatment and Active Labor Act (EMTALA).
- H.R.1565, the Saving Lives, Saving Costs Act. The bill would give liability protection to physicians who follow their specialty society’s clinical practice guidelines. The bill has 33 cosponsors.
- H.R. 1876/S. 781, the Good Samaritan Health Professionals Act. The bill would limit the liability of health care professionals who volunteer to provide healthcare services in response to a disaster. The bill has 25 cosponsors in the House and three in the Senate.
The Trump Administration has signaled its backing of liability reform. “The rising cost of healthcare is a major concern in our Nation,” the White House noted in a statement of support for the Protecting Access to Care Act. “State medical liability rules often allow for unlimited non-economic damages. This encourages providers to practice defensive medicine, increases the cost of healthcare, and imposes a significant burden on healthcare providers.”
The administration has included several other liability reforms in its fiscal 2018 budget proposal, the statement added, such as authorizing the Secretary of Health and Human Services to provide guidance to states to create administrative healthcare tribunals, and excluding provider expressions of apology from evidence in a healthcare lawsuit. “These additional policies would likely generate additional savings to patients and to the federal government by reducing unnecessary medical services.”