Federal lawmakers are currently considering legislation that would impose
a nationwide cap on medical malpractice damages. While such measures have
failed in the past, the likelihood of passage is higher by a Republican-controlled Congress.
California’s MICRA Cap
The federal bill is modeled after California’s medical malpractice
cap. In this state, the Medical Injury Compensation Reform Act (MICRA)
limits noneconomic damages in medical malpractice lawsuits to $250,000.
That means that when a person is injured or dies as a result of
medical negligence, California law says his or her pain and suffering are worth a maximum
of $250,000, no matter how egregious the injuries.
MICRA, enacted in 1975, has not been adjusted for inflation. So while the
cost of living has increased dramatically over the past 42 years, the
damages limit has remained static.
In fact, the current buying power of $250,000 in 1975 dollars equals approximately
$70,000. To date, efforts to amend the law have been unsuccessful. The
Troy and Alana Pack Patient Safety Act would have raised the cap to $1.1
million and permanently indexed it to inflation. However, the measure
failed in 2015.
Proposed Federal Medical Malpractice Cap
Protecting Access to Primary Care Act (H.R. 1215) would also cap non-economic damages at $250,000. The cap would
apply to medical malpractice suits in which the plaintiff received healthcare
covered through a federal program, subsidy, or tax benefit, such as Medicare,
Medicaid, or private health plans subsidized by the Affordable Care Act.
The proposed bill would also enact several other medical malpractice “reforms,”
including the following:
- The bill eliminates joint and several liability in favor of “fair
share” liability. Instead of the plaintiff being able to collect
the full amount of damages from any party, each party would be liable
only for the amount of damages allocated to such party in direct proportion
to such party’s percentage of responsibility.
- A health care provider who prescribes or dispenses a medical product approved,
licensed, or cleared by the Food and Drug Administration could not be
named as a party to a product liability lawsuit involving the product
and would not be liable to a claimant in a class action lawsuit against
the manufacturer, distributor, or seller of such product.
- The bill also limits contingency fees paid to plaintiffs' attorneys
to 40 percent of the first $50,000 awarded to an injured patient, 33 percent
of the next $50,000, 25 percent of the next $500,000, and 15 percent of
damages exceeding $600,000.
- When the award of future damages is $50,000 or more, it would be paid in
future installments rather than immediately.
Late last month, the House Judiciary Committee voted 18-17 to approve the
Protecting Access to Primary Care Act. Democrats on the committee introduced
amendments intended to preserve legal protections for victims, such as
abused nursing home residents and surgical patients harmed when instruments
are left inside their bodies. However, they were all rejected.
Arguments Against Limiting Non-Economic Damages
The sponsors of H.R. 1215 maintain that the legislation is intended “[t]o
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, the exact opposite is likely
to happen if Congress passes the bill.
In cases where the victim doesn’t have wages (children, the disabled,
the elderly, stay-at-home moms) or where the victim dies (and therefore
there are no future medical bills to pay), there are zero economic damages,
and the most the plaintiff can recover is $250,000. In addition, the $250,000
cap would prevent many legitimate malpractice cases from ever making it
to a courtroom. In many cases, the cost to pursue the claim would outweigh
the potential recovery. As a result, victims are not only prevented from
seeking justice, but there is less accountability for doctors who commit
preventable medical errors.
If you or someone you love has suffered serious harm due to a medical error, please contact
a San Diego medical malpractice attorney at the Law Offices of Robert Vaage
for a free consultation.