Trial Magazine

What a difference three months and our members can make. H.R. 1215, the “Protecting Access to Care Act of 2017”—the medical malpractice bill that also applies to nursing home and drug and device cases—was supposed to be considered on the House floor in March, but it was postponed after the vote on the bill to repeal and replace Obamacare was delayed. In the meantime, our Republican Trial Lawyers Caucus and Women Trial Lawyers Caucus held Lobby Days, with members coming to Washington, D.C., to educate Congress about the bill’s provisions. When the bill finally came to the floor for a vote in June, members of the House were prepared.

Delay always helps. At the beginning of March, members of the House, including the staunchest defenders of civil justice, barely knew what was in the horrible bills designed to take away your clients’ rights and your practices. We had to work fast to educate members about the provisions in H.R. 720, the “Lawsuit Abuse Reduction Act” (mandatory Rule 11 sanctions that would lead to satellite litigation); H.R. 725, the “Innocent Party Protection Act” (more difficult to remand improperly removed cases involving a diverse and nondiverse defendant); and H.R. 985, the “Fairness in Class Action Litigation Act” (also affects multidistrict litigation and asbestos trust claims). But with H.R. 1215 being delayed until June, members were ready to come to the House floor and debate their concerns.

H.R. 1215 is worse than any state law. The bill caps noneconomic damages at $250,000, eliminates joint liability for economic and noneconomic loss, caps attorney fees, has a restrictive statute of limitations, and says that a doctor and a pharmaceutical company cannot be named in the same lawsuit. The bill also preempts state law in an extreme way. If your state caps damages, the bill’s so-called state “flexibility” cap allows states to keep existing caps but overrides state law for all other provisions in the bill. 

For example, if your state caps damages in medical malpractice cases only, the bill adds a $250,000 cap for other health care liability lawsuits, including those involving nursing homes. The bill applies these limits regardless of the number of parties, the causes of action, or the theory of liability—so the cap applies to intentional torts or other reckless misconduct.

The debate. General debate on the bill included rhetoric on states’ rights, and it became clear early in the debate that the bill’s sponsor, Rep. Steve King (R-Iowa), did not understand how the bill preempts state law. Rep. Jamie Raskin (D-Md.), a freshman member of the House Judiciary Committee and former law professor, did an excellent job explaining how the state flexibility cap is not actually flexible because H.R. 1215 would preempt states that constitutionally prohibit damages caps, whose courts have struck down damages caps, and whose legislatures have not enacted caps. 

Other members of the House Judiciary Committee, including Rep. Sheila Jackson Lee (D-Texas) and Rep. Pramila Jayapal (D-Wash.), told stories about people injured by medical negligence whose rights H.R. 1215 would limit.

Rep. Jimmy Duncan (R-Tenn.), a former judge, gave an impassioned speech against the bill that invoked states’ rights. “In using a tenuous connection to preempt state law, H.R. 1215 violates the Tenth Amendment’s crucial limitation on federal power,” he quoted from a House Liberty Caucus letter, a conservative congressional caucus whose members focus on following the Constitution.

The vote. The bill passed the House 218-210 with no Democrats voting for the measure and 19 Republicans voting against the bill, a high-water mark. The close vote indicates that there was not much appetite for federal overreach or for protecting corporate wrongdoers. The bill goes to the Senate with zero momentum. Thank you for your stories, your advocacy, and your support—it made an enormous difference.

Susan Steinman is AAJ’s senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.