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In collaboration with the New York Times, ProPublica authored a multi-part series on the falling cost of generic drugs and insurance. One article sought to answer what politicians and many consumers have been asking lately: If generics are cheaper, why are some insurance plans requiring consumers to use the more expensive brand name versions? ProPublica spoke to a California pediatrician who said he began receiving memos from pharmacies telling him that he had to prescribe name brand versions of attention deficit drugs such as Adderall XR.

ProPublica has revealed that deals with insurance companies and pharmacy benefit managers (companies such as CVS Caremark who manage drugs plans for insurance companies) are receiving kickbacks and deals, while leaving consumers footing the bill for higher out of pocket costs.

Adderall XR and Insurance Companies: Back Room Negotiations

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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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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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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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One of our attorneys recently came across an article in the Law Guide to Iowa Medical Malpractice Claims, a publication developed by fellow medical malpractice attorneys from that state. The article addressed the question that most families have after a medical procedure that didn’t go exactly as expected: How do I know if I have a legitimate medical malpractice case?

The article noted that attorneys are not able to argue that a doctor, nurse, medical professional, or product manufacturer made a mistake. Instead, medical malpractice attorneys must hire and rely on expert witnesses in the field in which the client believes a mistake has been made. Hiring experts is expensive, as is the entire process of preparing a case. Therefore, experienced medical malpractice attorneys must be selective in the cases they choose. Most Chicago medical malpractice and personal injury attorneys, like those at Levin and Perconti, only are paid if they are able to successfully recover for the victim and their family.

To determine if you have a case that an Illinois medical malpractice attorney will want to take on, meeting the 3 criteria below means you likely have cause to pursue legal action:

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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.