H.R. 5, the so-called Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2011, is a terrible bill and is as anti-consumer and anti-victim as it gets. Actually this is the very same bill that was passed by the House of Representatives in 2005. This bill would severely limit the ability of injured patients and their families to hold health care and medical products providers accountable. The bill is broadly drafted by design and does more than deal with medical malpractice lawsuits. If passed, it would limit remedies against all for-profit nursing homes, insurance and pharmaceutical industries, manufacturers of medical devices, and even against doctors who commit intentional torts, such as sexual abuse.
Proponents of H.R. 5 have claimed, without any real justification, that the bill is necessary to create jobs and grow the economy. Even though Congress has been debating so-called medical malpractice tort reform for three decades, this is the first time that job creation has been used as the justification for a bill which would limit consumer and patient rights and decrease safety. When hospitals, nursing homes, and drug companies cannot be held fully accountable, there is no incentive to reduce the 98,000 medical errors that reportedly kill patients every year. As a result, if this bill passes, even more patients may suffer injury, resulting in the need for additional medical care. Let’s take a look at some of the ramifications that would come about if H.R. 5 becomes law:
o Specifically, the bill preempts all areas of state law covered by the bill, including state rules regarding joint and several liability, the availability of damages, collateral sources, attorneys’ fees, and periodic payments.
o The bill does not preempt any state defenses designed to protect health care providers.
o The bill would leave in place existing state damage caps on economic, non-economic, or punitive damages, but would impose the caps in the bill on states that do not have limitations on damages, including states whose limitations were struck down as unconstitutional by state Supreme Courts.
o Some states would keep their damage caps, but be forced to also except federal cap mandates, undermining the work of state legislatures that have considered these issues in the past.
o States with an overall medical malpractice cap, such as Indiana’s $1.25 million cap would also have to accept a $250,000 non-economic damage cap for medical malpractice, medical products, insurance companies, and nursing homes.
o This statute of limitations, which is much more restrictive than a majority of state laws, would cut off meritorious claims involving diseases with long incubation periods.
o Many states toll the statute of limitations for minors. This protects children who have life-altering injuries, but whose parents did not file a claim on their behalf.
o The bill would preempt Delaware’s newly-enacted law, which provides that children who are sexually abused by doctors have an unlimited period of time in which to file a claim.
o Non-economic damages compensate patients for very real injuries–such as the loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain and permanent and severe disfigurement. These dangers also compensate for the loss of a child or a spouse. These are very real damages, and juries are able to calculate them fairly.
o Caps on non-economic damages disproportionately affect women, children, the elderly, the disabled, and others who may not have substantial economic loss such as lost wages or salary.
Obviously, H.R. 5, if passed, would be very bad for the American people and it should be defeated. In my opinion, it’s one of the worst pieces of legislation, and certainly the most anti-consumer, to ever have been introduced in Congress. The powerful special interests are pulling out all stops in their efforts to pass it. They are using doctors – and their perceived fear of being sued – as a way to make the legislation look fair and good to the public.
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