When you read what I just read, you will have to ask yourself: why is my legislator in favor of House Resolution 1215 (HR 1215)?
- Invades state’s rights to pass laws affecting their own citizens by the federal government mandating to the states.
- HR 1215 unnecessarily increases taxpayer burden.
- The bill tries to pass laws in a number of broad and different areas.
- HR 1215 is so broad, it will protect those who commit sexual assaults and rape.
- The CBO reports the passage of HR 1215 will increase mortality of patients by 48,000 over a ten year period.
Other groups who oppose HR 1215? Yes, plenty:
- Military & Veterans groups
- Physicians’ Group
- Conservative Groups
- 80 Consumer Groups
- State Legislator Group
Here is what the American Association for Justice had to say about HR 1215:
Top 5 Reasons to Oppose the Protecting Access to Care Act
- H.R. 1215 is a Wrecking Ball to States’ Rights and State Tort Systems.
H.R. 1215, the so-called “Protecting Access to Care Act,” broadly preempts both state medical malpractice law and state products liability laws, violating the 10th Amendment and States’ Rights. Under the U.S. tradition of federalism, tort law is an area of law exclusively left to state governments. In other words, there is no federal tort law. The bill would preempt the decisions of state legislatures and state courts, mandating a new federal tort law. It would even preempt 18 State Constitutions.
While the bill has provisions regarding “State Flexibility” these provision are in-fact preemption clauses, mandating a strict federal regime that contradicts the decisions of state legislatures and state courts. Even CBO has recognized this bill’s preemption of state law.i
The bill’s supporters have recognized this federalism concern and have sought to justify it by adding a “federal nexus.” Don’t be fooled: This “federal nexus” would apply the bill’s provisions to every healthcare good or service, mandating federal preemption of state law cases brought in state courts, usurping the rights of states to decide their own tort law.
- The Bill Will Increase Costs to Taxpayers.
The Congressional Budget Office (“CBO”) has scored or studied medical malpractice reforms 26 times over the past three decades, and CBO’s findings have varied dramatically over the years. The most recent study (2017) on medical malpractice reform, conducted by researchers at Northwestern University and the University of Illinois, found that states that pass caps on damages see a 4% increase in Medicare Part B spending.ii That study concluded that passage of caps could increase total Medicare spending by 2-3%. This recent research corresponds with earlier studies where researchers have warned:
There is no evidence that limiting med mal lawsuits will bend the healthcare cost curve, except perhaps in the wrong direction. Policymakers seeking a way to address rising healthcare spending should look elsewhere.iii
- Not Just Malpractice: Bill’s Scope is Breathtaking and Unprecedented. It is a mistake to call H.R. 1215 a “medical malpractice law”; it is an Everything-In-Healthcare-Reform-Law. It applies to traditional medical malpractice against doctors and hospitals, but it also applies to pharmaceutical companies, medical device manufacturers, compounding pharmacies, for-profit nursing homes, dentists, outpatient facilities, and even insurers and HMOs.
The bill applies to all “health care liability claims” which the bill broadly defines as all claims against a health care provider (which is also broadly defined to include nearly every healthcare entity), based upon the use or failure to use a health care services or medical products, “regardless of the theory of liability on which the claim is based.” Applying to any theory of liability means all of tort law, far more than just the theory of medical malpractice.
This scope is unprecedented. While many states have passed medical malpractice liability reform, none have passed an everything-in-healthcare-reform law.
- The Bill Will Immunize Providers Who Commit Sexual Assaults and Rapes.
H.R. 1215 applies to any health care claim brought against a health care provider, including nursing homes and assisted living facilities, for any reason, including claims for rape, sexual assault, battery, fraud, misrepresentation, slander, defamation, intentional infliction of emotional distress, and willfully, reckless misconduct. Damages for rape and sexual assault are non-economic damages, compensating patients for very real injuries, and H.R. 1215 caps non-economic damages at $250,000.
Even if a nursing home failed to conduct background checks on an employee who was a registered sex offender, even if a hospital failed to stop an ob/gyn videotaping his patients, even if a pediatrician molests a child, the most that an injured party can recover regardless of the number of injuries or the number of wrongdoers is $250,000. This is just wrong.
- Increases Mortality Rate: Patients Will Pay for this Bill with Their Lives.
Malpractice reform not only limits patients rights, it has been proven to physically harm patients. Currently, 440,000 patients die annually from preventable medical errors, making preventable medical errors the third leading cause of death in the U.S.iv
Passing medical malpractice reform worsens patient health outcomes. By removing accountability for preventable medical errors, medical malpractice reform is expected to increase medical errors, resulting in even more patient deaths.
CBO’s analysis admitted this concern over patient safety, stating, “Because medical malpractice laws exist to allow patients to sue for damages that result from negligent health care, imposing limits on that right might be expected to have a negative impact on health outcomes.” One study cited by CBO found that a 10% reduction in costs related to medical malpractice liability would increase the nation’s overall mortality rate by 0.2 percent.v That equates to an additional 48,000 patients deaths by malpractice over the ten-year period.
i CBO, Options for Reducing the Deficit: 2017 to 2026 (December 2016) (“Some people might oppose this option because it would be a federal preemption of state laws. Currently, many states either specify higher limits on liability, loss, or damage claims than those proposed in this option or do not limit such claims at all.”); available at: https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/52142-budgetoptions.pdf.
ii Myungho Paik, Bernard S. Black, David A. Hyman, Damage Caps and Defensive Medicine, Revisited, Journal of Health Economics (2017, Forthcoming) (“Overall, we estimate a 4-5% post-cap rise in Medicare Part B spending. Our estimates for the effect of damage caps on Part A spending are small and not statistically significant. Total Medicare spending appears to rise as well – our point estimates are 2-3% and are sometimes statistically significant. There is, at the least, no evidence that caps reduce healthcare spending.”); available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2110656.
iii Paik et al., Do Doctors Practice Defensive Medicine, Revisited, NORTHWESTERN LAW & ECON RESEARCH PAPER NO. 13-20; Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-21 (October 21, 2014).
iv John T. James, A New, Evidence-Based Estimate of Patients Harms Associated with Hospital Care, Journal of Patient Safety (September 2013); available at: www.documentcloud.org/documents/781687-john-james-a-new-evidence-based-estimate-of.html.
v Lakdawalla, Darius N. and Seth A. Seabury, The Welfare Effects of Medical Malpractice Liability,” 32 INTERNATIONAL REVIEW OF LAW AND ECONOMICS 356-369 (2012) (“Using values of a statistical life most commonly adopted by US regulators, the value of the mortality decline more than likely outweighs the increase in medical costs. On balance, reducing malpractice costs is more likely to harm than improve social welfare. . . the major costs of malpractice may be in health rather than in dollars.”).