ABA opposes federal medical-malpractice bill

On March 17, 2016, Mr. Franks of Arizona introduced a Bill titled “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2016”[1] that aims to improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system.

However, American Bar Association (“ABA”) has sent a letter[2] to Bob Goodlatte, the chairman of the House Judiciary Committee opposing the bill since it also provides for putting a cap on the non-economic damages. The letter stated that for the past 200 years, states always had the authority to determine medical liability law and the Congress should not substitute its judgment for the systems that have evolved over a period of time.

Moreover, the Bill has under Section 6 (b) (2) proposed a cap of $250,000 on non-economic damages such as pain and suffering. The letter places its reliance on a research that shows that placing caps on damages diminishes access to the courts for low-wage earners, like the elderly, children, and women and if the non-economic damages sought are minor and capped, then attorneys would be less likely to represent these potential plaintiffs. Furthermore, the letter also states that in cases of excessive verdicts, the courts already have the power to reduce them through remittitur.

Apart from the above, the letter opposes the “fair share” rule as stated in Section 4 (d) of the Bill under which a party will be liable only for its share of damages. Presently, ABA supports laws requiring defendants whose responsibility is substantially disproportionate to the entire loss to be liable for only their equitable share of the noneconomic loss. It is this fair share provision that the ABA opposes to the extent that it would preempt the existing state laws and to the extent that it would apply a proportionate liability rule to all damages, not just the plaintiff’s noneconomic damages.

Lastly, the letter also opposes Section 5 of the Bill titled “maximizing patient recovery” under which judges are empowered to reduce contingent fees paid from a plaintiff’s damage award to an attorney, redirect damages to the plaintiff, and further reduce contingent fees in cases involving minors and incompetent persons. However, ABA policy states that there is no justification for special restrictions on contingent fees in medical malpractice cases that exist.

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