Over the past 20 years, House Republicans repeatedly have passed malpractice tort reform that caps non-economic damages at $250,000, only to be stymied by Senate Democrats who view such measures as an intrusion on a plaintiff’s right to his or her day in court.

Today, the Republican-controlled House Judiciary Committee narrowly approved another such medical liability bill, but one with a twist. The reforms would apply to malpractice suits in which the plaintiff received healthcare covered through a federal program, subsidy, or tax benefit. In other words, healthcare provided under Medicare, Medicaid, or private health plans subsidized by the Affordable Care Act.

For that matter, the bill also would govern litigation involving services paid for by employer-sponsored health plans, because premiums enjoy federal tax exemption.

Bill supporters contend that if the federal government is shelling out billions of dollars for healthcare, Congress should ensure that it’s getting the most bang for the taxpayer buck. The cap on non-economic, or pain and suffering, damages as well as other reforms in the bill, the argument goes, will deter frivolous malpractice suits, relieve physicians of the pressure to practice defensive medicine, lower malpractice insurance premiums, and increase access to healthcare. Bill supporters point to how physicians once fled from Texas and an allegedly hostile litigation environment only to return once the state enacted similar tort reforms in 2003.

The nonpartisan Congressional Budget Office estimated that a previous incarnation of the measure would save some $50 billion over 10 years.

The Protecting Access to Primary Care Act enjoys the support of the Health Coalition on Liability and Access, which includes a number of major medical societies such as the American Medical Association, the American College of Surgeons, and the American College of Cardiology, as well as the American Hospital Association and numerous medical malpractice insurers.

Plaintiffs’ Attorneys Fees Would Take a Hit

The Protecting Access to Primary Care Act is modeled after landmark tort reform that California passed in 1975. Besides limiting non-economic damages to $250,000, the bill approved by the House Judiciary Committee today would:

  • Limit contingency fees of plaintiffs’ attorneys. They could receive only 40% of the first $50,000 awarded to an injured patient, 33% of the next $50,000, 25% of the next $500,000, and 15% of damages topping $600,000.
  • Pay future damages of $50,000 or more in future installments instead of immediately.
  • Exempt clinicians who order a drug or medical device for a patient from product liability or class action suits.
  • Replace joint-and-several liability with a Fair Share rule. Under joint-and-several liability, a plaintiff can recover all court-awarded damages from one of several defendants, even if he or she is only partly responsible for the injury. The Fair Share rule divvies up damages among multiple defendants based on their percentage of responsibility.
  • Encourage speedy resolution of claims. The statute of limitations for a malpractice suit would be 3 years after the date of injury, or 1 year after the plaintiff discovers the injury, whichever comes first.

Democrats on the House Judiciary Committee uniformly lambasted the bill. Ranking Member Rep. John Conyers (D-MI) said that the $250,000 cap on non-economic damages was unfair to women, children, the poor, and other vulnerable members of society who are less able to prove they’ve been economically damaged in terms of past and future lost earnings, or any other loss that can be quantified.

More than anything, though, Democrats faulted the bill for riding roughshod over the right of states to shape their own judicial system either through legislation or court decisions. They noted that some state supreme courts have struck down caps on non-economic damages as unconstitutional while others have upheld them. And some states have chosen not to set such caps at all, while others have set them well above $250,000. In Maryland, for example, it’s $785,000.

“This bill would take a sledge hammer to our tort system,” said Rep. Jamie Raskin (D-MD).

Rep. Steve King (R-IA), the bill’s sponsor, said that the measure respected states’ rights. If a state disagrees with the $250,000 cap, King said, its lawmakers can set the limit higher or lower.

The measure puts no cap on economic damages, he noted. “Nothing in this bill prevents litigation…from making a patient whole.”