Trial Magazine

This month’s column should have focused on the House floor debate of the misnamed “Protecting Access to Care Act” (H.R. 1215), a comprehensive health care liability measure to cap noneconomic damages; eliminate joint liability for economic and noneconomic loss; and make it more difficult to hold wrongdoers accountable in medical negligence, nursing home, and drug and device cases. It was scheduled for a vote but then abruptly pulled from the calendar after House Speaker Paul Ryan withdrew the “American Health Care Act,” the bill that would have repealed and replaced the Patient Protection and Affordable Care Act (ACA).

A few weeks later, a new version of that bill was introduced and passed in the House by only a five-vote margin. While the vote on the ACA replacement measure did not include H.R. 1215, a vote on health care lawsuits will occur at some point.

U.S. Department of Health and Human Services Secretary Tom Price strongly believes in tort “reform” and actively sponsored such measures when he served in the House of Representatives. Limiting damages for claims against health care providers—including for-profit hospitals and nursing homes—is part of the congressional leadership’s Obamacare replacement plan. And the pharmaceutical industry is busy looking for ways to reduce its accountability.

More bills. While H.R. 1215 could go to the House floor at any time, other measures restricting health care lawsuits have been introduced—and they also could gain traction. A perennial favorite, dubbed the “Saving Lives, Saving Costs Act,” is back as H.R. 1565. It would give doctors broad immunity if they follow certain guidelines, which would be developed by medical organizations.

While Secretary Price has advocated for practice guidelines, many patients are concerned that one-size-fits-all guidelines would replace doctors’ judgment, potentially leading them to treat all patients with a set of generalized recommendations that fail to keep pace with rapidly changing medical technology—which could make the predetermined guidelines outdated before they even go into effect. Also, applying multiple guidelines developed by different medical organizations to the same patient is complicated, could fail to allow for individualized care, and should not be used as the basis to provide immunity to negligent providers.

Another measure, H.R. 1704, illustrates the lengths that anti-civil-justice proponents will go to just to get a clever name. The “Accessible Care by Curbing Excessive lawSuitS Act”—or “ACCESS Act”—is like H.R. 1215, but it contains additional tort reform provisions, such as a certificate of merit requirement and expert witness restrictions.

It also contains a provision that allows the court to reduce already-capped attorney fees when the attorney is representing a minor or an incompetent person. The fee provision is potentially so restrictive that it could result in the most vulnerable people having the most trouble retaining counsel because bringing the case would be cost prohibitive. H.R. 1704 also prevents any kind of apology or expression of sympathy by the defendant from being used as an admission of liability or as evidence of an admission against interest.

Next on tap. Congress will now turn its attention to must-pass bills, including the budget, appropriations spending, and raising the debt ceiling. AAJ will continue to be vigilant and defend against all attempts to insert anti-civil-justice measures into government funding measures and other bills.

In the meantime, AAJ’s Voluntary Membership Assessment helps ensure that we can fight back against the additional demands placed on us by this Congress. Please visit www.justice.org/fightback for more information and
to contribute.

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.