Posted by Bill Sandweg on 19 June 2017.
Politicians like to come up with misleading names for their bills. The worse the bill is for the American People, the more lovable the name they choose to divert attention from what they are actually doing. They are true to form in their current attempt to take away your rights in order to make a big gift to the medical profession and the insurance industry. They call it “The Protecting Access to Care Act of 2017.” With a name like that, what could possibly be wrong?
Politicians preach about the virtues of local control except when the locals don’t do what the big boys want done. In this bill, Republicans in Congress are telling the states what they must and must not do when it comes to malpractice. “We know best,” they say. It doesn’t matter what the people of Arizona want or what our state constitution says, if this passes, Arizona must obey.
The original plan was to make the changes a part of the repeal and replacement of the Affordable Care Act (“Obamacare”). However, because the Republicans are trying to accomplish the repeal and replace through the mechanism called “reconciliation,” they are limited to changes which affect the budget. Reconciliation allows them to pass a bill with only 51 votes; there can be no minority filibuster. Under reconciliation, however, changes to the malpractice laws cannot be made. Congressional Republicans will have to pass the bill the old-fashioned way and it will be subject to filibuster in the Senate.
The House bill is sweeping. It limits your rights in many ways. First, it shortens the period during which a person can sue to one year from the time the person discovers they have been the victim of malpractice or a maximum of three years, whichever comes first. If you discover malpractice more than three years after the fact, too bad for you. If you are a child and cannot sue, too bad for you too unless your parent or guardian has committed fraud against you. If your parents or guardian are not very responsible and don’t bring suit on your behalf, you just have to suck it up. If you have future medical expenses and have to go on AHCCCS to get them paid, taxpayers will be responsible for those bills instead of the doctors who made them necessary in the first place.
While there is no limit on economic damages, non-economic damages are capped at $250,000.00. This means that if your child is killed by medical malpractice, $250,000.00 is the most you can recover. If a stay-at-home mom is killed by medical malpractice, $250,000.00 is all her husband, children and parents may recover for her loss. The bill says that the jury cannot be told about the damages cap so that jurors will think they are compensating the victims when they really are not. After all, we can’t have jurors, to whom we entrust life and death decisions in criminal cases, making full awards against doctors.
It is already difficult for people who have not been catastrophically injured by medical malpractice to find a lawyer to represent them. The cases are very expensive to prosecute and juries are very reluctant to find against health care professionals. To reduce further the chances that an injured victim might be able to find a lawyer to represent her on a contingent fee basis, the bill restricts the amount a lawyer may receive. It doesn’t matter if you are willing to agree to a certain fee, Congress says you cannot unless it is below a certain amount. Doctors and hospitals can pay as much as they want for lawyers to defend them in malpractice cases but patients are limited in what they can pay. Does that sound fair to you?
All of this is premised on the idea that there is some sort of crisis in medical malpractice and that doctors are unethically prescribing tests for you that you do not need because they are afraid of being sued. There is no malpractice crisis. According to the National Practitioners Data Bank, which by law records every malpractice payment in the country, total malpractice claims and total malpractice payments have been consistently dropping for the last 10 years for which data are available. Between 2003 and 2013, the total number of claims for which payment was made dropped by 35%. During the same time period, total payments dropped by over 25%. Doctors and hospitals win a high percentage of the cases which get tried. Malpractice insurance companies are making large profits. According to the A.M. Best insurance rating company, as of 2013 malpractice insurers had reported eight straight year of profits. Some are reporting record profits.
The idea that doctors will order far fewer tests if this bill passes has been debunked by the non-partisan Congressional Budget Office, which predicts only a small decrease in the number of tests ordered and a small savings equal to less than 0.0015% of the overall annual spending on health care. This is not a fair benefit to receive in return for trading away your rights. On the other hand, the medical profession and its insurers will reap billions in additional profits from these restrictions on the rights of patients.
While most Americans have been distracted by Congressional efforts to take away their health coverage and to reinstate the right of insurance companies to deny coverage based on the existence of a pre-existing condition, Congress has been quietly moving to take away other rights, including the right to sue and be compensated when you have been the victim of medical malpractice. Don’t let them get away with it.