HR5JUL29

TheWeekInCongress.com

Week Ending July 29, 2005

H.R.5 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.

BRIEF

Supporters hold that the bill’s purpose is to reduce the amount awarded to victims of medical malpractice. They argue that the increase in malpractice insurance premium charged doctors is the result of large awards to claimants and have caused many doctors, OB-GYN’s in particular they say, to go without insurance or stop being doctors altogether. Reduce the payout, lower the premiums, they say.

That part of the bill supporters cherish and opponents lament is also, then, the main purpose of the legislation: The bill would establish that if you are injured as the result of a healthcare provider’s actions or a health care product you can sue for punitive damages if you can prove with “clear and convincing evidence” that the person acted with “malicious intent” to injure you or deliberately failed to avoid an unnecessary injury that you were certain to suffer. You may sue for punitive damages also if compensatory damages are awarded you. Then, you can sue for twice the economic damages you suffered or $250,000, whichever is greatest. Economic damages that you suffer as a result of the injury are not limited. The caps apply no matter how many persons or businesses are being sued and each of those individuals and businesses would pay the amount equal to their involvement in the injury. To determine the amount of punitive damages the court must consider the severity of the harm inflicted, any effort to conceal the action that led to the injury, if the circumstance leading to the injury were somehow profitable to the doctor or manufacturer, and criminal and civil penalties imposed on the provider.

In an odd twist, juries are not to be told that there is a cap on non-economic or punitive damages. Rather any amount exceeding $250,000 would be reduced to $250,000 before entry of judgment. Awards could be paid in increments over time if either party wants to do that.

If you do not file a claim within a year of discovering the injury or three years after the injury is actually manifested then the statute of limitations runs out and you can not sue. Children under age six must file in three years or before age eight, whichever is longer.

The attorneys that represent you, if working on the contingency fee of being paid only if they win, would find that the court can restrict that fee by applying a formula that reduces the percentage of the settlement paid to the attorneys as the settlement amount increases. Fees would not exceed 40% of the first $50,000 recovered, 331/3 % of the next $50,000, $25 % of the next $500,000 and 15% of the award f $600,000.

Manufacturers, distributors, suppliers and providers of medical products that comply with FDA standards are relieved from liability for injury if the product or service is generally recognized to be safe and effective pursuant to FDA regulations, is approved, cleared, or licensed by the FDA and was subject to pre-market approval, clearance or licensing by the FDA with respect to safety of performance, packaging or labeling. There is no such prot4ection if information was withheld from or misrepresented to the FDA that would have impacted the FDA approval or if an FDA official was bribed to provide approval.

A doctor or other healthcare provider is not liable for damages due to an injury from a drug they prescribed or disbursed if the drug or product has FDA approval. Nothing in the bill addresses liability if the wrong drug is administered.

Compensatory damages means “objectively verifiable monetary losses…such as past and future medical expenses, loss of past and future earnings, cost of obtaining domestic services, loss of employment, and loss of business or employment opportunities, damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other non-pecuniary losses of any kind or nature. The term `compensatory damages' includes economic damages and non-economic damages”.

The term `economic damages' means “objectively verifiable monetary losses…such as past and future medical expenses, loss of past and future earnings, cost of obtaining domestic services, loss of employment, and loss of business or employment opportunities.

Injury due to vaccines would not be covered in the bill. Vaccine injuries are handled through another government program funded by a surcharge on individual vaccine dose sales.

A State law that offers stronger liability protection to providers, manufacturers and the others would prevail and State law setting higher compensation for claimants than in this bill would also prevail.

Sponsor: Representative Phil Gingrey (R-GA-11^th)

Vote: The House Passed the bill (RC 449) (July 28, 2005) A Motion to Recommit the bill with Instructions failed (RC 448) (July 28, 2005)

Cost to the taxpayers: No discernible cost.