Mothers and Babies Deserve the Same Protections As Everyone Else

Oppose Senate Bill 366

S. 366 is an appallingly cynical attack on the rights of mothers and their babies. It is no less insidious than the bill to limit the rights of all injured patients. In fact, it is almost as if the proponents of that bill decided they would simply target the rights of the most vulnerable—pregnant mothers and their babies.

This bill will devastate the rights of parents and children, but it will help neither patients nor doctors. The real beneficiaries will be insurance companies, HMOs and large medical corporations. Sponsors of this bill have the gall to call it a "Healthy Mothers and Healthy Babies' Act." How can shielding from accountability an entire medical specialty area result in healthy babies? Less accountability will never lead to better health care.

What's Wrong with S. 366?

S. 366 discriminates against women and infants by restricting their right to hold physicians, hospitals, insurance companies, HMOs, and even drug and medical device manufacturers accountable for injuries resulting from the provision of obstetrical and gynecological care. Although proponents of the legislation say the bill is necessary to increase access to women's health care, no where does the bill make liability insurance for doctors more available or affordable. And no where does it provide access to health care for women who are uninsured. What it does do is greatly limit the ability of women and children with the most devastating injuries to hold the wrongdoer accountable.

• Not just medical malpractice, but also product liability and insurance claim cases relating to the provision of obstetrical care. The bill applies to medical malpractice, medical products, and health insurance claims. If the proponents were truly concerned about an insurance crisis facing doctors, why does this bill sweep in even product liability claims against pharmaceutical and medical device manufacturers, and bad faith claims against insurers and HMOs?
  
  
• Not just Ob/Gyns, but any physician, nurse or health care professional providing "services for pre-natal or labor and delivery, including the immediate postpartum period." Don't be misled—this bill does not protect only Ob/Gyns. The definition of protected services is so broad it would protect any professional attending a pregnant mother, and even protect a pediatrician attending a baby during the postpartum period. For example, the bill would limit the recovery of a woman who is injured by an anesthesiologist during the course of childbirth, but would preserve state tort law if that same anesthesiologist injured the same woman during heart surgery. The limits on recovery could even apply to a woman who is injured as a result of a botched hysterectomy immediately following child birth, but it would not apply to a botched hysterectomy performed at any other time.
  
  
• Placing a higher value on a man's injury than a woman's. The bill cynically devalues the worth of pregnant women injured by medical negligence. Men's injuries are given full value. For example, if a woman is prescribed blood pressure medication during pregnancy that causes blood clots, her recovery is limited under the bill's provisions. If a man is prescribed the same defective blood pressure medication by his internist, he may recover against the drug manufacturer in accordance with available state law remedies.
  
  
• Reduced statute of limitations. The legislation unfairly reduces the amount of time that an injured woman has to file a lawsuit. Under the bill, a suit would have to be filed no later than one year from the date the injury was discovered or should have been discovered, but not later than three years after the "manifestation" of injury. This statute of limitations is much more restrictive than a majority of state laws and would arbitrarily cut off meritorious claims involving diseases with long incubation periods. Thus, a pregnant woman who contracted HIV through a transfusion but only learned of the disease five plus years after the transfusion would be barred from filing a claim. In addition, the bill limits the rights of injured newborns by requiring that actions on their behalf be brought within 3 years from the date of the manifestation of injury. This is in direct contradiction to the laws of many states, which preserve the rights of minors to seek legal redress upon the age of majority.
  
  
• An arbitrary and discriminatory $250,000 cap on non-economic damages. The bill limits non-economic damages to $250,000 in the aggregate, regardless of the number of parties against whom an action is brought. This cap is more restrictive than any state cap. Non-economic damages compensate patients for very real injuriesBsuch as the loss of fertility, excruciating pain and permanent and severe disfigurement. They also compensate for the loss of a child or a spouse. These are very real damages, and juries are able to calculate them fairly. Infants who sustain life-long injuries during childbirth or women who lose their fertility due to a defective drug taken during the course of pregnancy do not have lost wages or salary. Their injuries may be almost completely non-economic and this bill would have a devastating impact.
  
  
• Elimination of joint liability for economic and non-economic damages. The bill completely eliminates joint liability, thereby upending the law in many states. Under joint liability, injured mothers and their babies are compensated fully for their loss. Joint liability enables an individual to bring one lawsuit against the entities responsible for practicing unsafe medicine or manufacturing a dangerous, defective product and have the defendants apportion fault among themselves, if the jury finds for the plaintiff. Our civil justice system has determined that it is the injured mother and her baby—not multiple negligent medical providers—who deserve the greatest measure of protection.
  
  
• Severe restrictions on contingent fees. The bill gives the court power to restrict plaintiff's attorney fees regardless of whether recovery is by judgment, settlement, or any form of alternative dispute resolution. The bill specifies that contingent fees, regardless of the number of plaintiffs, may not exceed: (1) 40% of the first $50,000 recovered; (2) 33a% of the next $50,000 recovered; (3) 25% of the next $500,000 recovered; and (4) 15% of any recovery in excess of $600,000. It is unfair to restrict plaintiff's attorney fees when defendants in these complicated cases have no such restrictions. Under the contingent fee system, lawyers are paid only if they are successful, and thus, plaintiffs' attorneys have a built-in incentive to accept only the most meritorious cases.
  
  
• Severe restrictions on the qualifications of expert witnesses. The bill provides severe restrictions on the use of medical experts during trials. Only physicians can testify against other physicians, and experts in one health care field can generally not testify against those in another specialty. Under this bill, a nurse present at the delivery could not testify that even the most flagrantly negligent obstetrician violated the standard of care nor could a pediatric neurologist testify against an obstetrician about injuries sustained by an infant during birth due to negligence.
  
  
• An unfair collateral source rule. The bill requires that any damages recovered by an injured woman or her baby be reduced by the amount of any collateral source benefits. Suppose a baby injured by her doctor needs complicated surgery and rehabilitation to correct the problem. If the cost for the medical treatment paid by the health insurer for that treatment is more than the damages recovered—a likely possibility under a bill that severely restrict non-economic damagesBthe injured patient may recover nothing. This provision deters those patients with the most serious injuries from holding the wrongdoers accountable.
  
  
• Severe restrictions on punitive damages. The bill provides that punitive damages may only be awarded if the plaintiff proves by an impossibly heightened standard of "clear and convincing" evidence that (1) the defendant acted with malicious intent to injure the plaintiff or (2) the defendant understood the plaintiff was substantially certain to suffer unnecessary injury, yet deliberately failed to avoid such injury. The bill does not create punitive damages in those states that don't recognize them. The bill further limits punitive damages to two times the amount of economic damages or $250,000, whichever is greater. Finally, because the bill prohibits punitive damages unless compensatory damages are awarded, the bill would eliminate any monetary recovery for women and infants under Alabama's wrongful death statute, which specifies that only punitive damages are available in wrongful death cases.
  
  
• Heightened pleading standards for punitive damages. Punitive damages may not be sought by the plaintiff initially. At the court's discretion, a plaintiff may be allowed to file an amended pleading for punitive damages only after a finding by that court that there is a substantial probability that the plaintiff will prevail. After suffering horrendous injury and going through the expense and trauma of litigation, this provision would force a mother to undergo a second ordeal.
  
  
• Medical products and medical provider suits must be brought separately. S. 366 requires that health care providers not be named as defendants in the same cases as pharmaceutical or medical device manufacturers. Further, health care providers may not be held responsible for an injury to pregnant mothers in a class action against pharmaceutical or medical device manufacturers. Of course, these requirements do not mean that the provider was not negligent. Instead of having all parties present and allowing the jury to evaluate the evidence, this provision will allow the defendant to blame another defendant who is not a party to the case. The result will be finger pointing by wrongdoers while injured mothers and their babies remain uncompensated.
  
  
• Periodic payments of all future damages. Allowing all future damages over $50,000 to be paid periodically punishes meritorious plaintiffs who were injured by malpractice and unsafe products and leaves them vulnerable and undercompensated. Meanwhile, large insurance companies reap the interest benefits of a plaintiff's jury award. This provision is retroactive and applies to all actions that have not been set for trial before the effective date (cases filed on or after the date of enactment) of the legislation.
  
  
• Preemption of state law. The bill includes a sweeping preemption of state law. This preemption is designed to override state laws that protect consumers and patients while keeping in place state laws that favor doctors, hospitals, insurance companies, HMOs, pharmaceutical and medical device manufacturers, and other health care defendants. 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. The bill does not preempt any state defenses designed to protect health care providers. 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.
  

March 3, 2005