The House passed ABA-opposed legislation Sept. 26 that would preempt state medical liability laws and, among other things, limit damage awards and lawyers fees in medical malpractice cases.
H.R. 4600, passed by a 217-203 vote, would allow full recovery of economic damages but impose a $250,000 limit on non-economic awards for pain and suffering in states with no cap. The bill also would cap punitive damages at twice the economic damages or $250,000, whichever is greater.
In addition, the legislation would limit lawyers contingency fees to 40 percent of the first $50,000 in damages, 33.33 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount more than $600,000.
The bill, sponsored by Rep. James C. Greenwood (R-Pa.) and patterned in part after a 1976 California law, has the support of President Bush, the American Medical Association and the insurance industry, which claim that high awards in medical liability cases have caused a steep rise in medical malpractice insurance rates and caused some doctors and hospitals to reduce or eliminate services.
H.R. 4600 would cover lawsuits brought against health maintenance organizations, drug and medical device manufacturers and other providers of health care, including nursing homes.
In correspondence to the House Sept. 23, ABA Governmental Affairs Director Robert D. Evans wrote that "Congress should not substitute its judgment for the systems that have thoughtfully evolved in each state over time." Currently, he said, states can enact and amend their tort laws, and the system functions well.
He also noted that, contrary to what some believe, recent studies reveal that juries do not favor plaintiffs over doctors in medical malpractice cases, and research does not support the claims that juries are biased against doctors or that they base awards on the depth of the defendants pockets or sympathy for plaintiffs.
The association is particularly concerned about the provisions in H.R. 4600 to cap pain and suffering awards, and maintains that the courts should make greater use of their powers to set aside excessive or inadequate verdicts. Medical professional liability expenditures account for less than one percent of national health care expenditures, he said, and any savings resulting from the legislation would be a small fraction of that percentage.
Evans further emphasized that those most affected by caps on damages are patients who have been most severely injured by the negligence of others. "These patients should not be told, due to an arbitrary limit, that they will be deprived of the compensation they need to carry on," he said.
The legislation now moves to the Senate, where S. 2793, an identical bill, was introduced in July by Sen. John Ensign (R-Nev.). On July 30, however, the Senate voted to table a less sweeping medical liability amendment by a vote of 57-42 during consideration of prescription drug legislation, S. 812
* This article is a reprint of the article "House Passes Medical Liability Bill" from the American Bar Association's Washington Letter, October 1, 2002.
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