Week ending June 16, 2017
H.R.1215 – Protecting Access to Care Act of 2017
This bill generally limits awards for medical malpractice under specific circumstances;
The bill report states its purpose – “The Protecting Access to Care Act’s reforms are premised on the need to provide checks and balances on otherwise unlimited lawsuits that increase the cost of health care and limit the availability of doctors nationwide. The Protecting Access to Care Act also contains an explicit Federal nexus: the bill’s reforms only apply to lawsuits “concerning the provision of [health care] goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit.”
“Wherever Federal policy affects the distribution of health care, there is a clear Federal interest in reducing the costs of such Federal policies.
“The bill also includes provisions in each section that allow states to opt-out of each provision provided they have their own limits on non-economic damages in place (either higher or lower than that set out in the bill), or they have other limits that provide the same or greater protections as those provided for in the bill.”
To those ends the bill imposes limits on medical malpractice litigation in state and federal courts ‘by capping awards and attorney fees, modifying the statute of limitations, and eliminating joint and several liability.’ – cbo
‘Statute of Limitations.–The time for the commencement of a health care lawsuit shall be 3 years after the date of injury or 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.
In no event shall the time for commencement of a health care lawsuit exceed 3 years after the date of injury unless tolled for any of the following–
(1) upon proof of fraud;
(2) intentional concealment; or
(3) the presence of a foreign body, which has no therapeutic
or diagnostic purpose or effect, in the person of the injured
Actions by a minor shall be commenced within 3 years from the date of the injury except that actions by a minor under the full age of 6 years shall be commenced within 3 years of injury, or 1 year after the injury is discovered, or through the use of reasonable diligence should have been discovered, or prior to the minor’s 8th birthday, whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which a parent or guardian and a health care provider have committed fraud or collusion in the failure to bring to $250,000. Juries may not be informed of this limitation. Parties are liable for the amount of damages directly proportional to their responsibility. These provisions do not preempt state laws that specify a particular monetary amount of damages.’
Supervision of payment and limitations on attorney fees are handled by the courts that may also require payment over time rather than a lump sum payment with the idea that the approach will not bankrupt a company or leave claimants will little payment after attorney fees.
Evidence of insurance payments may be introduced in lawsuits involving injury or wrongful death. Insurers may not recover any amount from the claimant in such a lawsuit but the provision does not apply if Medicare is the secondary payer or if Medicaid is the third party.
The bill provides for periodic payment of future damage awards.
If a provider prescribes a product or prescriptions approved by the FDA that causes the damage the provider is not liable.
(Full text of H.R. 1215 at congress.gov)
Sponsor: Rep. King, Steve [R-IA-4] (Introduced 02/24/2017)
Status: Passed House /
VOTES and FLOOR ACTION
On Passage: On passage Passed by recorded vote: 218 – 210 (Roll no. 337)
An amendment, offered by Mr. Sessions, numbered 1 printed in House Report 115-179 to begin the tolling of the statute of limitations on the date of the alleged breach or tort, rather than the date of the injury, which is not always a date certain. The statute of limits will be three years after the alleged breach or one year after the claimant discovers the breach, whichever occurs first. On agreeing to the Sessions amendment; Agreed to by voice vote
An amendment, offered by Mr. Sessions, numbered 2 printed in House Report 115-179 to clarify that health care services as defined in H.R. 1215 include safety, professional, and administrative services directly related to health care. On agreeing to the Sessions amendment; Agreed to by voice vote
An amendment, offered by Mr. Roe (TN), numbered 3 printed in House Report 115-179 to limit who qualifies as an expert witness in medical malpractice negligence cases, based on professional qualifications as well as geographic relation to where the case in chief is being litigated. On agreeing to the Roe (TN) amendment; Agreed to by voice vote
An amendment, offered by Mr. Hudson, numbered 4 printed in House Report 115-179 to allow a physician to apologize to a patient for an unintended outcome without having the apology count against them in the court of law. Requires a plaintiff to provide a notice of intent to the physician 90 days before the lawsuit is filed. The amendment also defers to sundry state laws regarding lawsuits and outlines requirements witnesses must meet for testimony during trial. On agreeing to the Hudson amendment; Agreed to by recorded vote: 222 – 197 (Roll no. 334).
An amendment, offered by Mr. Barr, numbered 5 printed in House Report 115-179 to give affirmative defense to defendants in health care liability cases if they can show they complied with clinical practice guidelines. On agreeing to the Barr amendment; Failed by recorded vote: 116 – 310 (Roll no. 335).
Motion to recommit: On motion to recommit with instructions Failed by recorded vote: 191 – 235 (Roll no. 336)
Text of the motion:
The House proceeded with 10 minutes of debate on the Kuster motion to recommit with instructions. The instructions contained in the motion seek to report the same back to the House forthwith with an amendment to add an exemption to the underlying bill for any claim or action that pertains to the negligent prescription of opioids.
COST AND IMPACT
Cost to the taxpayers: CBO expects that enacting H.R. 1215 would, on balance, lower costs for health care both directly and indirectly: directly, by lowering premiums for medical liability insurance; and indirectly, by reducing the use of health care services prescribed by providers when faced with less pressure from potential malpractice suits. Those reductions in costs would, in turn, lead to lower spending in federal health programs and to lower premiums for private health insurance.
In total, CBO and the staff of the Joint Committee on Taxation (JCT) estimate that enacting the legislation would reduce deficits by about $14 billion over the 2017-2022 period, and almost $50 billion over the 2017-2027 period. Off-budget revenues account for about $2 billion of that reduction.
Pay-as-you-go requirements: Data not available
Regulatory and Other Impact: This bill would impose private-sector mandates as defined in UMRA, on plaintiffs who file medical malpractice claims or medical product liability claims and on attorneys. CBO estimates that the aggregate cost of the mandates would exceed the annual threshold established in UMRA for private-sector mandates ($156 million in 2017, adjusted annually for inflation) in at least four of the first five years the mandates are in effect.
H.R. 1215 would preempt state laws governing health care lawsuits in the areas of statutes of limitation, joint and several liability, product liability, and contingency fees. Those preemptions would be intergovernmental mandates as defined in the Unfunded Mandates Reform Act (UMRA). The bill also would require courts (including state courts) to direct periodic payments of damages in some circumstances. CBO estimates that the costs of complying with those mandates would be insignificant and well below the threshold established in UMRA ($78 million in 2017, as adjusted for inflation).
Dynamic Scoring: CBO estimates that enacting the legislation would not increase net direct spending or on-budget deficits in any of the four consecutive 10-year periods beginning in 2028.
Tax Complexity: Not applicable to this bill.
Earmark Certification: Data not available
Duplication of programs: Data not available
Direct Rule-Making: Data not available
Advisory Committee Statement: Data not available
Budget Authority: Data not available
Constitutional Authority: Assumed.
More Bill Information:
While House Republicans appear to proffer H.R. 1215 as part of their effort to “repeal and replace” the ACA and that law’s guarantee of adequate and affordable health insurance coverage for all Americans, the bill actually undermines those goals by heightening the risks of harm to patients and consumers of medical products. It does this by significantly undermining their ability to pursue a case in court and by imposing various restrictions on victims’ ability to be fully compensated for their injuries, making it harder to hold wrongdoers accountable and to deter future misconduct.
Additionally, the bill represents a deep intrusion into state sovereignty as state legislatures and state courts traditionally set the rules governing tort liability. For these reasons, and those articulated above, we strongly oppose H.R. 1215.
Mr. Conyers, Jr.
Ms. Jackson Lee.
Mr. Johnson, Jr.
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