Articles Posted in Tort Reform

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“We’re not in a crisis. We’re definitely not in a crisis.”

An annual survey by Medical Liability Monitor (MLM) found that medical malpractice premiums rates have fallen 1.1%, the 10th consecutive year of lower rates in obstetrics & gynecology, general surgery, and general internal medicine, three areas of medicine said to be indicative of the industry as a whole.

The survey found that many physicians are paying lower premiums than they did in the early 2000s and noted that one insurance carrier was recently quoting general surgeons in Wisconsin $10,868, but was quoting $15,980 sixteen years ago.

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Earlier this week, the Washington Post published an article about the influence of lobbyists on legislation that would decimate patients’ rights and eliminate fair compensation for non-economic damages, frequently referred to as pain and suffering. The article comes on the heels of public declarations by heads of lobbyist groups who claim that H.R. 1215, the Protecting Access to Care Act, was passed in the House and used nearly identical language to the drafts they submitted to Representatives. The Washington Post quotes New York Democratic Rep. Hakeem Jeffries: “Large business groups are writing these bills. This has got to stop.” The House passed H.R. 1215 with a vote of 218-210 in July. The Senate is due to take a summer recess before Congress reconvenes after Labor Day. A Senate vote on H.R. 1215 will likely take place in September.

The Washington Post also touches on the swiftness with which some of the recently proposed bills have been passed, as well as the rarity of a bill that concerns something as large as tort reform being voted on without hearings from public interest groups and other outside parties. The article points out that the Senate’s recent attempt to repeal and replace the Affordable Care Act was also voted on without public input.

Big Business Lobbyists Scoring Major Victories

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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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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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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.

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This week, the Trump administration released their budget, estimating a savings of $31.8 billion over 10 years by capping non-economic damages in medical malpractice lawsuits. This practice, known as tort reform, has been a highly argued issue for decades. With over 30 states having already enacted some type of tort reform, the facts show that the number of medical malpractice lawsuits have declined, but that the average payout has actually increased. What could explain this?

Tort Reform Will Further Harm Economically Disadvantaged

While tort reformers would like to argue that fewer malpractice lawsuits are due to legislation restricting damages, the truth is that the system is set up in these states to discourage attorneys from taking lawsuits and to discourage those with claims from coming forward. The result is attorneys who have become extremely selective of the cases they will take on, choosing to only take those that seem to be a ‘sure thing.’ Before assuming the worst, consider the financial nature of the profession. Most medical malpractice and personal injury attorneys are only paid by the client if they recover money. All of the hours of research, being available to consult with the victim and/or their loved ones, finding, hiring, and interviewing expert witnesses, conducting depositions and court appearances are not covered by the client. Law firms are fronting the capital to carry these cases and with non-economic damages limited in many states, they’ve had to turn down cases that while legitimate, might not fare so well in court. Setting up the system so that money is only exchanged if the attorney successfully handles a case is done to serve families of all economic means, particularly those that have been weighed down by astronomical medical bills, loss of income, and other factors that have affected their ability to seek justice through an experienced medical malpractice attorney.

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H.R. 1215, a proposed house bill also known as the Protecting Access to Care Act, takes away the rights of all Americans, but is particularly worrying to veterans, whose health system is already failing them. The Veteran’s Health Administration (VA) serves nearly 9 million U.S. veterans and is the largest health care system in the country. The number of veterans receiving care through the VA has continually increased since 2010, which is in line with the increase in veterans returning from tours in Iraq & Afghanistan.

Patient Safety an Issue at VA Facilities
It’s no secret that the VA has been plagued by issues, including delayed care and treatment due to excessive wait times and inadequate staffing that has ultimately led to a rash of medical errors, many of which have been fatal. The Government Accountability Office reported that as the number of patients seen by the VA has increased, so has the number of medical errors. The Center for Justice & Democracy at New York Law School compiled a fact sheet on the impact H.R. 1215 would have on veterans and cites an April 2017 report by U.S. Department of Veterans Affairs’ Office of Inspector General (VA OIG) that found 194 instances in the past 3 years alone where patient safety was at jeopardy. The fact sheet also cites another report that found that from 2001-2011, the government paid out over 1,000 malpractice claims. If a medical error ends in an injury or death while under the care of the VA, the U.S. Government is ultimately at fault. In limiting non-economic damages to $250,000 (as H.R. 1215 seeks to do), the government is protecting itself from large payouts for tragic consequences stemming from their inability to fix a long-ailing health system. The negative impact of H.R. 1215 is wide-reaching. From sick children receiving Medicaid, to elderly adults receiving Medicaid and Medicare, to veterans, we all stand to be harmed by the so called Protecting Access to Care Act. The only ones being shielded by such legislation are those who should be held responsible.