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Republican Arizona Representative Martha McSally recently penned an article for the Arizona Daily Star about why she decided to break party alliances and vote against a bill that would take away an injured victim’s right to fair compensation.

H.R. 1215, also known as the Protecting Access to Care Act, narrowly passed the House with a vote of 218-210 in late June, thanks to 19 ‘No’ votes from Republican congress members such as Ms. McSally. While voting has yet to take place in the Senate, the slim margin by which the bill passed in the House gives many hope that Senators and Representatives are trusting their gut feelings about such a restrictive bill, as well as listening to the loud voices of their constituents. The bill would only allow victims of medical error, nursing home abuse and neglect, and of medical device and prescription drug injuries no more than $250,000 in non-economic damages, frequently referred to as ‘pain and suffering.’

No Price Tag on a Life or One’s Livelihood

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An appeals court in Wisconsin ruled in favor of overturning the state’s $750,000 non-economic damages cap, with Judge Joan Kessler saying that a “cap on non-economic medical malpractice damages always reduces non-economic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.”

The case was brought forth by Wisconsin’s state medical malpractice fund, an entity that is responsible for the payment of malpractice settlements and judgements against state-run facilities. The appeal came after a Milwaukee mother of 4 suffered from an infection that put her into septic shock and a coma, leading to amputation of all 4 limbs. The woman, Ascaris Mayo, was only 57 years old in 2011 when the missed diagnosis of a Strep A infection forced her to become a quadruple amputee. In 2014, a jury awarded her $8.8 million in economic damages, along with $16.5 million for pain and suffering. Under previous Wisconsin law, she would have been able to collect the $8.8 million in economic damages, but only $750,000 for pain and suffering.

It is expected that the state medical malpractice fund will attempt to take the appeal before the Wisconsin Supreme Court, but the victory of Mrs. Mayo in Wisconsin is a step in the right direction for all injured victims and those of us who fight for patients’ rights.

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“Health care fraud is a reprehensible crime,” said Health and Human Services Inspector General Daniel Levinson. “It not only represents a theft from taxpayers who fund these vital programs, but impacts the millions of Americans who rely on Medicare and Medicaid.”

In a landmark takedown by the Department of Justice, the Department of Health and Human Services, and federal, state and local law enforcement agencies, U.S. Attorney General Jeff Sessions has filed charges against 412 individuals in connection with Medicare fraud, 120 of which were in connection with the opioid epidemic that is currently plaguing our country. A Washington Post article today says that of the 120 charged in connection with opioid-related Medicare fraud, 115 of those were medical professionals, 56 of which were physicians.  The charges indicate that many of the physicians wrote false scripts and participated in other schemes that aimed to sell drugs to known addicts. The amount fraudulently billed to Medicare is said to total $1.3 billion.

In a statement today, Sessions says that one American dies every 11 minutes from a drug overdose and that we are currently seeing more drug-related deaths than we ever have in U.S. history.

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In a House vote yesterday, H.R. 1215, also known as the Protecting Access to Care Act, passed by an extremely close margin of 218 – 210. With such questionable support, patient advocates and all of us who fight to uphold the 7th amendment (the right to a trial by jury) feel hopeful that Senate Democrats and Republicans will vote against the bill. While the date of a Senate vote is yet to be announced, we cannot stress enough how important it is to continue contacting your Senators to voice your opposition to the bill. To make your voice heard, you can call your members of Congress by visiting www.takejusticeback.com/protectpatients.  Please act now.

Below is a statement from the American Association of Justice on the passage of H.R. 1215 in the House of Representatives:

For Immediate Release 

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Today on NPR.org, journalist Michelle Andrews detailed the components of H.R. 1215 (The Protecting Access to Care Act) and used research to debunk all of the myths that H.R. 1215 supporters have been perpetuating. The changes that H.R. 1215 would implement are massive and with little benefit to Americans. Instead, the law heavily favors insurance companies and providers, leaving victims of medical error, pharmaceutical and device defects, and nursing home abuse and neglect victims with little recourse when things go wrong. And we know they do. According to researchers at Johns Hopkins, medical errors are the 3rd leading cause of death in the U.S.

What is H.R. 1215?

The Protecting Access to Care Act, H.R. 1215, is separate from the Better Care Act of 2017 (initially called the American Health Care Act of 2017 by the House, renamed to BCA by the Senate). The Better Care Act of 2017 was set to be voted on this week by the Senate, but was recently delayed until after July 4th. The Better Care Act is the Republican answer to the repealing and replacing Obamacare. In contrast, H.R. 1215 is related to medical malpractice and lawsuits.

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The Center for Justice and Democracy at New York Law School shared a strongly worded letter to House Speaker Paul Ryan and House Minority Leader Nancy Pelosi speaking out against H.R. 1215. The letter, written on behalf of 80 major public interest organizations, highlights the damages that could result from passing H.R. 1215, the so-called Protecting Access to Care Act. Among the most notable passages is this:

“Even if H.R. 1215 applied only to doctors and hospitals, recent studies clearly establish that its provisions would lead to more deaths and injuries, and increased health care costs due to a “broad relaxation of care.” Add to this nursing home and pharmaceutical industry liability limitations, significantly weakening incentives for these industries to act safely, and untold numbers of additional death, injuries and costs are inevitable, and unacceptable.

The latest statistics show that medical errors, most of which are preventable, are the third leading cause of death in America. This intolerable situation is perhaps all the more shocking because we already know about how to fix much of this problem. Congress should focus on improving patient safety and reducing deaths and injuries, not insulating negligent providers from accountability, harming patients and saddling taxpayers with the cost, as H.R. 1215 would do.”

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After a couple of false starts, H.R. 1215, the Protecting Access to Care Act is going to the House floor this week.  This massive medical malpractice bill also applies to nursing home and drug and device cases.  The bill caps non-economic damages at $250,000, eliminates joint liability for economic and non-economic loss, caps attorney fees, has a restrictive statute of limitations and says that a doctor and a pharmaceutical company cannot be named in the same lawsuit.

This means, among many other things, that finding an attorney to handle a medical malpractice case will be more challenging and that financial compensation for injuries that are hard to quantify (such as pain and suffering) cannot surpass $250,000. 

The bill will not get better during floor debate.  The only amendments that will be allowed are amendments that make the bill worse for patients.  The debate on this bill will begin on Tuesday with vote on final passage scheduled for Wednesday. 

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We’re in the final stretch of awaiting a House vote on H.R. 1215, otherwise known as the Protecting Access to Care Act. It is believed that a vote could happen at any time, leaving little time to waste in getting the message out about the deceptively named bill.

To recap, H.R. 1215 is a bill introduced in the House of Representatives and cosponsored by 3 Republican congressman from 2 states (2 from Texas, 1 from Iowa). While the name of the bill sounds like it has the best interests of Americans in mind, the grim reality is that the bill would alter the statute of limitations to bring a lawsuit against a negligent provider, as well as cap non-economic damages in medical malpractice lawsuits at $250,000, both of which override the authority of many states who have already found malpractice caps to be unconstitutional and have set their own statute of limitations.

A cap on non-economic damages is an insult to every victim, both current and future, that has suffered from medical negligence. This means that preventable medical errors that cause suffering such as infertility, paralysis, brain damage, trauma (both physical and emotional), and even death are worth no more than $250,000.

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After our attorneys contacted Illinois Senator Dick Durbin to urge him to oppose H.R. 1215, the Protecting Access to Care Act, we were happy to receive an email acknowledging our concerns. In addition to thanking us for taking the time to reach out to him, Senator Durbin shared several items that we know to be true regarding medical malpractice. Namely, that medical malpractice costs account for less than 3% of all healthcare expenditures, that 6% of physicians are responsible for 60% of all medical malpractice lawsuits, and that medical error is the 3rd leading cause of death in this country.

Senator Durbin reinforces what we already know about healthcare and our legal system: medical malpractice lawsuits are not responsible for the high cost of healthcare and limiting the ability of victims to seek justice for injury from medical errors is a violation of our rights.

We would like to thank Senator Durbin for recognizing and sharing in our fight against H.R. 1215.

Our attorneys would like to share the contents of his letter with you:

 Thank you for contacting me about the Protecting Access to Care Act (H.R. 1215).  I appreciate hearing from you.

Introduced by Representative Steve King of Iowa, the Protecting Access to Care Act would reduce the statute of limitations for health care lawsuits to three years after the date of injury. Non-economic damages awarded would be limited to $250,000 or less, no matter the number of parties in the lawsuit.  Health care providers who prescribe FDA approved products would be protected from any lawsuits involving those products.  No companion bill has been introduced in the Senate.

Proponents of reforming our medical liability system contend that we should establish limits on medical negligence settlements to prevent meritless lawsuits and reduce health care costs.  However, the Congressional Budget Office estimated that malpractice costs amounted to less than three percent of overall health care spending.  Additionally, nearly 70 percent of all medical negligence lawsuits result in no settlement.  An estimated six percent of doctors are responsible for 60 percent of all medical negligence that result in claims.  The justice system is our only effective means of holding these doctors accountable.

According to the Institute of Medicine, preventable medical errors kill as many as 98,000 Americans every year and injure countless more.  Medical errors are the third leading cause of preventable death in the United States.

The Protecting Access to Care Act has been referred to the House Judiciary and Energy and Commerce Committee.  I will keep your concerns about this legislation in mind should the Senate consider similar legislation.

Thank you again for contacting me.  Please feel free to keep in touch.

 

      Sincerely,
Sen_Signature
Richard J. Durbin
United States Senator
RJD/jw
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With policymakers and tort reform advocates recently making a big push for the American Health Care Act (AHCA), patient and elder rights advocates have come out in full force to discredit many of the non-truths being touted as facts to promote tort reform. Last month, Sabrina Safrin, an attorney and Professor of Law at Rutgers University, published an enlightening article entitled ‘The C-Section Epidemic: What’s Tort Reform Got to Do with It?‘ Ms. Safrin’s report investigated the exceedingly high rate of C-Sections in this country and compared the rate in states with medical malpractice caps vs. those without. Her research led her to conclude that there is no reduction in C-Sections in states that have imposed a cap. Based of the most recently available CDC data on births, Ms. Safrin and her team concluded that there is actually a 1% higher rate of C-Sections in states with a malpractice cap.  The author also suggested several strategies that could assist in bringing down the number of C-Sections, something the American Congress of Obstetricians and Gynecologists (ACOG) has theorized will be directly reduced by enacting tort reform.

Caesarean Section: Facts & Figures

A C-Section is currently the most common procedure in hospital operating rooms across the country. According to the CDC, 1 in 3 babies is delivered by C-Section, a more than 50% increase from just 20 years ago. Such a large jump would lead one to assume that it has been discovered that C-Sections lead to better outcomes for neonatal health. Not so. In fact, data shows that hospitals with higher C-Section rates show no decrease in neonatal death rates, higher APGAR scores (a measure of baby’s health at birth), or reduction in time spent in a NICU. In fact, babies delivered via elective C-Section spend more time in the NICU, typically for respiratory issues due to early delivery. A C-Section also mandates a longer hospital stay for both the mother and baby, as well as a longer recovery, which all lead to higher hospital bills. Ms. Safrin notes that a C-Section costs 33-50% more than a vaginal delivery and that privately insured women are 33% more likely than an uninsured woman to deliver via C-Section, while those on Medicaid are 17% more likely to have one. Also worth noting is that half of all deliveries in this country are paid for by Medicaid.