The Current Healthcare Bill: Eroding The Rights of Individuals to Seek Justice in Courts

Last Thursday, May 4, the House of Representatives passed by one vote the Republican plan to replace Obamacare. Among other things, this bill will have a significant impact on lawsuits related to medical malpractice. According to a report by the New York Times, the bill would impose new limits on lawsuits involving care covered by Medicaid, Medicare, or private health insurance subsidized by the Affordable Care Act. These limits would apply to medical malpractice lawsuits involving doctors, hospitals and nursing homes, as well as some product liability claims. The bill would also restrict contingency fees that lawyers can charge for representing plaintiffs in health care lawsuits.

These limits on the rights of individuals to seek redress in court are touted by proponents as a way to reduce health costs and spending by slightly decreasing doctors’ use of diagnostic tests and other services performed, thereby reducing their exposure to lawsuits. However, such limits will do nothing more than restrict patients’ rights in seeking assistance from federal health programs. Many in Congress, as well as consumer advocates, have made the argument that bill will deny full restitution to victims of medical malpractice, and can apply even in cases of “egregious medical error,” such as when a foreign object is left inside a patient’s body or doctors operate on the wrong body part.

Furthermore, the House bill would not only make it more difficult for victims of elder abuse to seek restitution, but would also take away one of the most powerful tools used to improve elder care in nursing homes. The bill would place a cap of $250,000 limit on “noneconomic damages,” which includes compensation for pain and suffering. While California currently has this cap on noneconomic damages in medical malpractice cases, elder abuse cases are exempt from this limit.

The bill would also protect doctors who prescribe a drug or medical device approved by the Food and Drug Administration (FDA), as well as pharmacists who fill prescriptions, from being named in a product liability lawsuit against the manufacturer or seller of the product. The bill provides similar protections for pharmacists who fill prescriptions. This despite the fact that many such government standards are minimum standards, and States may want to have more stringent protections in place.

Tort law has been an ever-evolving entity for many years. The concept of making negligence costly to perpetrators helps protect us and our families by helping to change corporate behaviors to emphasize safety; by driving legislative protections; by uncovering hidden truths about consumer products and corporate wrongdoing; by spearheading recall efforts; and, at its core, helping to ensure we are safe. Significantly, the common law system allows the poorest, youngest, most frail victims to sue. However, the proposed changes threaten these rights – a strong, sustained response from constituents and consumers around the country will be required to defeat these measures.