The Protecting Access to Care Act is a brazen misnomer; the only thing this bill, also known as H.R. 1215, would protect is wrongdoers’ immunity from the legal process.
I have dealt in dozens of medical malpractice cases. I know the justice system surrounding these cases, and I know what will damage and impede it. Let me go over what this bill does and why it is dangerous to everyone outside of the wealthy career politicians who created it and the special interest groups that support them.
Depriving Victims of Malpractice
Firstly, H.R. 1215 will cap payouts for noneconomic damages, or pain and suffering (including permanent disability, disfigurement, and post-traumatic mental symptoms) in any medical malpractice case at no higher than $250,000. In a painfully ironic twist, this is the same number of deaths caused every year by medical errors in the United States alone, as estimated by a recent study from Johns Hopkins University. It is the third most common cause of death in the U.S., and yet supporters of this bill are pushing to limit the consequences for those responsible.
You may be asking, as long as people are compensated for their financial losses, what’s the problem? But imagine for a moment that a doctor or pharmacist’s negligence caused (God forbid) the death of your child or the loss of all use of your right arm. You would have to live with those losses for the rest of your life. How can we possibly quantify the monetary value of those hardships? More to the point, how can we set a maximum on them?
Infringing on States’ Rights
Tort law, including laws surrounding medical malpractice suits, has always been the prerogative of individual states. Now, supporters of this bill in Congress are taking it upon themselves to override several state constitutions by replacing state malpractice laws with their own.
Supporters will defensively point out that the bill’s cap on noneconomic damages does not extend to states with conflicting laws, but the fact is, that cap is not the only change the bill proposes and it is not the only instance of it directly contradicting laws in several states. A forced repeal of state collateral force rules and a federally-mandated statute of limitations are only two examples of this bill’s multiple infringements on states’ rights. Conveniently (for some), the state laws H.R. 1215 leaves in place are only the ones favorable to defendants–in this case, negligent or irresponsible hospitals and nursing homes–rather than their injured and disadvantaged patients.
This is a blatant overstep by the federal government, championed by many of the same people who preach the importance of states’ rights the most loudly when beneficial for them.
Supporters of this bill ignore the fact that tort law is not only for the purpose of compensating those wronged by malpractice, but also for the purpose of dissuading powerful, for-profit companies from committing malpractice for the sake of their own gain.
For example, consider a scenario in which a for-profit nursing home is hiring employees with a history of elder abuse. The company is putting the safety of their residents at risk by not properly vetting their applicants, but they are also saving themselves some time and money by skipping that process, and so no changes are made. Often, the only way they will be convinced to stop this irresponsible practice is the reminder that they will lose more money in damages than they save, if they are sued by a victim whose safety they neglected.
H.R. 1215 includes several measures to limit the amount of money a corporation would lose in such a suit, eliminating accountability for corrupt companies and giving them the go-ahead to put patients’ safety on the line.
Incidentally, among the things this bill classifies as non-economic (and therefore, less compensable) damages is sexual assault in nursing homes and other medical facilities. It also bans plaintiffs from including hospitals, nursing homes, and healthcare providers in suits involving dangerous drugs, even if they prescribed or provided it.
To sum things up, H.R. 1215 not only severely limits the extent to which a wrongdoer can be held accountable for their malpractice, it also limits the wrongdoing for which they can actually be held accountable at all.
Threatening Access to Care
So, will this bill actually do what it claims to? The short answer is, predictably, no.
H.R. 1215 applies to anyone receiving health care coverage from a federal program, including the Affordable Care Act, Medicare, Medicaid, and health care plans provided by the government to veterans and their families. These programs are provided for the express purpose of giving access to care to some of the most vulnerable members of society: the elderly, people with disabilities, and those living below the poverty line, to name just a few. It is members of these groups whose access to quality health care was most threatened in the first place, and this bill now aims to strip them of their ability to hold their abusers within the healthcare system responsible.
Even if you are not a member of any of the groups to whom this bill applies, let us not forget two things: that nearly 40 percent of the American population is covered by federal health care plans and that mistreated patients are also consumers. If and when Congress deprives them of their ability to seek sufficient financial restitution for medical malpractice, their ability to contribute to the economy will be severely damaged, and we will all suffer from the resulting financial strain.
All evidence indicates that the creators of H.R. 1215 were counting on Americans not to be smart enough to realize that this bill would only disadvantage them. Fortunately, this has largely not been the case, and public derision for it has quickly traversed the political aisle.
Democrats in and outside of Washington D.C. have voiced strong opposition to the bill. In a highly averse statement on it, Representative John Conyers (D-MI) summed up the feelings of many Democrats, disparaging it as “legislation intended to deny victims of medical malpractice and defective medical products the ability to be made whole and to hold wrongdoers accountable” and adding, “This measure has repeatedly failed because of its many problems, including its trampling of states’ rights.”
Meanwhile, many prominent Conservatives, likely increasingly reluctant to align themselves with the Trump administration’s frequent demonstrations of lunacy, have decried the bill as well. Understandably, such a blatant flex of federal authority doesn’t sit well with a group of people known for pushing small government. The well-known Georgetown law professor and libertarian, Randy E. Barnett, said of Republicans who support the bill: “With friends like these, constitutional federalism does not need enemies. Can we coin a new pejorative, FINO: ‘Federalists in Name Only’?”
On top of the moral bankruptcy of the Protecting Access to Care Act, there is another issue: this bill is unconstitutional, plain and simple. The idea of an enforced damages cap encroaches not only on the prerogative of states, but on that of the judiciary as well. Believe it or not, over the past few decades, similar bills have been thrown out as unenforceable in state after state–including multiple times in our own state, Illinois.
This first happened in 1995, when the Illinois government introduced Public Act 89-7, which imposed a noneconomic damages cap of $500,000. It was overturned in Best v. Taylor Machine Works, a case involving a product liability that resulted in a man fracturing both heels and suffering 2nd and 3rd degree burns covering nearly half of his body. When you consider the sheer amount of pain and future impairment, it is clear that $500,000 was nowhere near as much as the plaintiff needed or deserved, and the state supreme court thought so too. They struck down that act over 20 years ago, and now the Federal Government has taken it upon themselves to enforce the same defunct rule country-wide, but with available damages slashed in half? This is outrageous to me.
Bills like H.R. 1215 and Public Act 89-7 restrict the right to a jury trial, a right established by the founding fathers in the Sixth Amendment. The supreme courts of several states have already ruled damages caps like those proposed in these bills as an infringement on that basic right promised to all Americans. The only people who can constitutionally determine the amount awarded in a jury verdict are the jurors and, in rare cases, the judge.
This bill takes important legal decisions out of the hands of jurors–registered voters like you and me–and puts them into the hands of politicians who, whatever they name their bills, care nothing about our access to responsible medical practices. They urge strict and absolute following of the Constitution when it suits their own agendas, but seem to conveniently forget about when fellow Americans’ rights under the law do not benefit them. At the end of the day, regardless of political beliefs and affiliations, you must see how this bill would put patients at risk and disregard the rulings of state courts..
The House of Representatives passed H.R. 1215 by the incredibly slim margin of one vote. It is up to us, the voters, to make sure it does not pass the senate. I urge you to call your senators and to stay up to date on the progress of this bill.
If you have been the victim of medical malpractice, or any injury case involving extensive pain and suffering, and would like to speak with an attorney, please contact me here or at (312) 258-8188 for a free consultation.