On June 28, 2017, the United States House of Representatives passed the Protecting Access to Care Act of 2017 (H.R. 1215). The stated purpose of the bill is 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.”[1] If enacted, this federal bill would cap non-economic damages in medical malpractice claims, such as emotional distress, pain, suffering, and mental anguish, at $250,000. Economic damages, such as health care costs and salary loss, would not be affected.
The reform would apply only to malpractice suits in which health coverage was provided in whole or in part through a federal program, subsidy, or tax benefit, such as Medicaid, Medicare, health plans subsidized by the Affordable Care Act, and veteran’s benefits. Employer-sponsored health plans would also be governed by this bill, since they enjoy federal tax exemption. People covered under COBRA or health savings plans could also be affected.
What’s New?
If enacted, H.R. 1215 would impact medical malpractice claims in several notable ways:
- Non-economic damages would be capped at $250,000;
- The statute of limitations would be set at three years after the date of the injury, or one year after the plaintiff discovers the injury, whichever comes first;
- Joint-and-several liability would be replaced with a Fair Share rule. Under the Fair Share rule, a party’s liability would be in direct proportion to the party’s percentage of responsibility, as determined by the jury;
- Future damages of $50,000 or more would be paid in future installments instead of immediately;
- Health care providers would have greater protections from lawsuits. They could no longer be named as parties to product liability claims involving products prescribed or dispensed that were approved, cleared, or licensed by the FDA. Health care providers would also be protected from liability in class action lawsuits against manufacturers, distributors, or sellers of FDA-approved products;
- Limits would be placed on plaintiffs’ attorney contingency fees and;
- There is a “medical apology” provision, which would exclude provider expressions of regret or apology from evidence in a healthcare lawsuit.
State Flexibility
Some of the new terms proposed by the bill are followed by clauses stating that the provisions would not preempt state laws. For instance, states could set higher (or lower) caps on non-economic damages, set a longer statute of limitations in certain instances, and set stricter limits on contingency fees. Notably however, the language of the bill indicates that states would have to “specify a particular monetary amount of economic or noneconomic damages.”[2] This would force states that have previously struck down damage capping legislation to determine specific monetary amounts for noneconomic damages or the caps in H.R. 1215 would apply.
Conclusion
If enacted, H.R. 1215 could dramatically impact malpractice claims. The bill has been approved by the House of Representatives and is awaiting consideration from the U.S. Senate Judiciary Committee. One independent entity that compiles and analyzes pending legislation has given the bill a 28 percent chance of passing. According to whitehouse.gov, “if H.R. 1215 were presented to the President, his senior advisors would recommend that he sign the bill into law.” To read the entire bill, click here.
[1] Protecting Access to Care Act of 2017, H.R. 1215, 115th Cong., (2017).
[2] Id. at Sec. 3(e).
This information is general in nature and should not be construed as tax or legal advice.