H.R. 5 Bill on Medical Malpractice Caps
The House Subcommittee on Health had a hearing on Capitol Hill this morning. The official name of the hearing is “The Cost of the Medical Liability System Proposals for Reform, including H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011.” For those of you who don’t know, H.R. 5 is a bill that was placed into consideration early in the legislative term. The bill has quite a few ambitions, but the main thrust of this legislation is to place a cap of $250,000 on non-economic damages in medical malpractice cases.
This is nothing new. Proponents of tort reform have turned caps on damages into the cure all for any and all problems that exist in our health care system. The idea here is that if you put a limit on the amount of damages that a plaintiff can receive in a medical malpractice case, then this would allow medical malpractice insurance companies to lower their rates. Proponents of this theory also state that these caps would allow doctors and surgeons to work without the fear of being sued.
There are quite a few things wrong with these assumptions. In the first place, we have yet to see medical malpractice insurance companies dramatically lower their rates in states where these caps have been put in place. Nor have patients who have been injured by their doctors suddenly stopped filing lawsuits. It seems to us that the only people who are helped by caps on damages in medical malpractice cases are the medical malpractice insurance companies, and considering that malpractice insurers are more profitable than 99% of all Fortune 500 companies, it doesn’t seem like they need much help at all.
Another troubling element about these caps is that they seem to favor those who are financially well off but completely disregards the suffering of those who are not. Economic damages basically compensate you for the amount of money that you lost due to the negligent actions of your doctor or surgeon. This can be a significant amount if you happen to be a stock broker, airline pilot, or if you happen to be a doctor yourself. That amount can be even more if the actions of the doctor or surgeon prevent you from returning to your job. But if you happen to be a retail worker or if you happen to work in a restaurant, the amount of compensation won’t amount to much, particularly once your insurance company goes through its usual round of claim rejections. So for those of us who don’t make millions of dollars a year, non-economic compensation is particularly important. Ultimately, what these caps do is make it incredibly hard for malpractice injury victims to collect for damages suffered as a result of negligence. Plaintiffs have to hire attorneys if they’ve been wrongfully injured, and these attorneys work on a contingency basis. Often expensive expert witnesses have to be hired. If there is a strict cap on non-economic damages, quite often the process of bringing a malpractice case to court becomes financially impossible. So while this legislation would not specifically make it illegal to file a medical malpractice case, it might certainly make it impossible financially. A malpractice suit would become the equivalent of buying a Lamborghini. Theoretically, anyone is able to buy one. But there are very few of us who can actually afford to do so.
The memorandum for today’s hearing gives us the inevitable mention of “frivolous lawsuits,” which to us is simply corporate-speak for “lawsuits that do not benefit us directly.” Coincidentally, today we also read a story from Northern Virginia Daily which gives a little more perspective on the sort of cases that would essentially no longer exist in America if H.R. 5 were to become law.
A 29 year old woman in Winchester, Virginia was suffering from persistent diarrhea and went to see a doctor. The doctor decided to perform a colonoscopy. When she was given a preparation medication before the colonoscopy took place, she had a great deal of difficulty handling it. She was suffering from nausea, abdominal pain and cramping. Rather than ascertain the cause of this pain, the doctor simply gave her Demoral and went ahead with the colonoscopy. The end result of this was that the woman had her colon perforated, which only added to her already existing medical problems. The woman came very close to dying.
If the allegations in the official complaint are correct, the doctor failed the patient in a number of ways, and her injuries are extensive. But let’s say that these medical malpractice caps are put into place. What are her options? She could still sue the doctor, of course. But what does she do for a living? Does she manage a bank? Is she an executive with Lockheed Martin? Is she a housewife? Is she a waitress? With H.R. 5 as established law of the land, that could matter more than the extent of her injuries,whether or not the doctor was guilty of negligence.
Greenberg and Bederman is a medical malpractice law firm located in Silver Spring, Maryland. We are currently offering legal assistance to those who have been injured due to the negligence or incompetence of a medical professional. We have helped hundreds of medical malpractice victims in Maryland, D.C. and Virginia receive fair treatment from the court system. If you or a loved one has been injured due to an instance of medical malpractice, contact Greenberg & Bederman for a free medical malpractice legal consultation.
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