Protecting Patient Safety: H.R.5

The U.S. House of Representatives is currently considering H.R. 5, the so-called Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act, a bill that would severely limit the ability of injured patients and their families to hold health care and medical products providers accountable.  Moreover, H.R. 5 is so broadly drafted that it would also limit remedies against the for-profit nursing home, insurance, and pharmaceutical industries.  Apart from H.R. 5’s broad substantive faults, it raises serious federalism concerns. In our legal system, states have historically been allowed to craft laws allowing injured victims to seek compensation in court.  This legislation upends that federal/state balance by explicitly preempting state tort law, denying states the freedom to create their own approach to malpractice and to decide what’s in the best interests of the people living in their state.  The Alliance for Justice and a coalition of consumer and patient safety groups strongly oppose this legislation. 

» Read the letter opposing H.R. 5

 

Reasons to Oppose H.R. 5:

H.R. 5 will reduce access to the courts for individuals injured by medical negligence, defective medical devices or dangerous drugs, particularly women and the elderly. 

  • Limits on pain-and-suffering damages have an adverse impact on women and the elderly.  The bill will place a $250,000 cap on pain-and-suffering damages.  An empirical study by law professor Lucinda M. Finley showed that women and the elderly receive a greater proportion of damages in this category than men.
  • The elderly, stay-at-home moms and children are less likely to find attorneys to represent them when injured.  Certain types of injuries such as sexual harm, reproductive loss, or elderly abuse, are almost entirely compensated through pain-and-suffering type damages.  Thus, a cap on these damages will make such claims nearly worthless so that attorneys will not take these cases.  Stories have appeared in the press reporting that state tort reform is having an impact on the types of medical malpractice victims attorneys are representing.  These press accounts have documented that cases involving retired people, housewives and children are most frequently turned down by attorneys since enactment of legislation that caps pain-and-suffering damages.

H.R. 5 gives special protection to drug companies and medical device industries.

  • The bill is overly broad.  Those pushing the legislation argue that it is needed to protect doctors but the bill gives the same broad protections to HMO’s, drug companies, nursing homes and medical device manufacturers.  The bill goes on to give extra protection for drugs and medical devices – those that are approved by the FDA as well as those not yet FDA approved but that are “generally recognized as safe and effective.”

H.R. 5 imposes a “one size fits all” damage cap regardless of the seriousness of the injury. 

  • Injured patients are denied the right to have a jury of their peers make a common sense determination based on the evidence about what is fair compensation for their injuries.  Frivolous cases should not be compensated at all.  Yet H.R. 5 takes a cookie cutter approach and treats all claims the same without any consideration of the extent and magnitude of the injury. 

H.R. 5 creates an unfair playing field and favors wrongdoers over injured patients.

  • The bill overrides state laws that protect consumers and patients while keeping in place state laws that benefit insurance companies, HMO’s, nursing homes, hospitals, doctors, drug companies and medical device manufacturers.

H.R. 5 erects obstacles for injured patients and makes it harder for them to get full relief.

  • The bill encourages extra litigation and incentive for wrongdoers to evade accountability.  Even if a health care provider is negligent, the injured party must bring separate suits against the drug company or medical device manufacturer and the provider.  This is not only inefficient in terms of court resources, it gives wrongdoers an incentive to point the finger at someone else that by law cannot be brought into the same case.
  • The bill reduces the time period in which an injured patient can file suit.  Claims could not be brought more than three years after manifestation of injuries – even for diseases with long incubation times such as HIV.

H.R. 5 undermines our civil justice system and relieves corporations of responsibility for defective products and negligent decisions.

  • The bill prevents everyday Americans from protecting their rights.  Our civil justice system is a basic part of our American Democracy, because it provides an objective process by which average people can defend their rights and hold the most powerful interests accountable.
  • The bill allows corporations to avoid accountability.  It is easy to imagine what would happen without this system: more corporations would focus solely on the bottom line, with little or no concern about product safety or being held responsible for negligent decisions.  No wonder powerful corporate interests are lobbying so hard to weaken the system.

Restricting the rights of injured patients will not reduce malpractice insurance rates for doctors or improve access to affordable quality healthcare.

  • The bill fails to address the real way that doctors can get relief from high malpractice insurance rates – insurance reform.  According to Medical Liability Monitor (October 2009), internal medicine malpractice premiums in states with caps are 9.9 % higher than in states without caps and general surgery malpractice premiums are 9.3% higher. 
  • The bill fails to include any provision to improve healthcare.  The best way to improve healthcare would be to weed out the relatively small number bad doctors who are responsible for the most of the lawsuit awards and disclose to the public when medical errors are made, taking away the veil of secrecy that now protects most wrongdoers.  Standards and testing for healthcare providers should be improved as well so that fewer patients are injured.  According to the Institute of Medicine, preventable medical errors kill as many as 98,000 Americans every year, and injure countless more.

H.R. 5 Raises Federalism Concerns.

  • The bill upends historic norms allowing states to craft tort law.  In our legal system, states have historically been allowed to craft laws allowing injured victims to seek compensation in court.  This legislation upends that federal/state balance by explicitly preempting state tort law, denying states the freedom to create their own approach to malpractice and to decide what’s in the best interests of the people living in their state. 

Additional Resources:  Public Citizen and the Center for Justice & Democracy have a great collection of fact sheets and reports on medical malpractice reform.