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115th Congress } { Rept. 115-55
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
PROTECTING ACCESS TO CARE ACT OF 2017
_______
March 22, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1215]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1215) to improve patient access to health care
services and provide improved medical care by reducing the
excessive burden the liability system places on the health care
delivery system, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 6
Background and Need for the Legislation.......................... 6
Hearings......................................................... 16
Committee Consideration.......................................... 16
Committee Votes.................................................. 16
Committee Oversight Findings..................................... 28
New Budget Authority and Tax Expenditures........................ 28
Congressional Budget Office Cost Estimate........................ 28
Duplication of Federal Programs.................................. 33
Disclosure of Directed Rule Makings.............................. 33
Performance Goals and Objectives................................. 33
Advisory on Earmarks............................................. 33
Section-by-Section Analysis...................................... 33
Dissenting Views................................................. 34
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Protecting Access to
Care Act of 2017''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Encouraging speedy resolution of claims.
Sec. 3. Compensating patient injury.
Sec. 4. Maximizing patient recovery.
Sec. 5. Authorization of payment of future damages to claimants in
health care lawsuits.
Sec. 6. Product liability for health care providers.
Sec. 7. Definitions.
Sec. 8. Effect on other laws.
Sec. 9. Rules of construction.
Sec. 10. Effective date.
SEC. 2. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.
(a) Statute of Limitations.--The time for the commencement of a
health care lawsuit shall be 3 years after the date of injury or 1 year
after the claimant discovers, or through the use of reasonable
diligence should have discovered, the injury, whichever occurs first.
In no event shall the time for commencement of a health care lawsuit
exceed 3 years after the date of injury unless tolled for any of the
following--
(1) upon proof of fraud;
(2) intentional concealment; or
(3) the presence of a foreign body, which has no therapeutic
or diagnostic purpose or effect, in the person of the injured
person.
Actions by a minor shall be commenced within 3 years from the date of
the injury except that actions by a minor under the full age of 6 years
shall be commenced within 3 years of injury, or 1 year after the injury
is discovered, or through the use of reasonable diligence should have
been discovered, or prior to the minor's 8th birthday, whichever
provides a longer period. Such time limitation shall be tolled for
minors for any period during which a parent or guardian and a health
care provider have committed fraud or collusion in the failure to bring
an action on behalf of the injured minor.
(b) State Flexibility.--No provision of subsection (a) shall be
construed to preempt any state law (whether effective before, on, or
after the date of the enactment of this Act) that--
(1) specifies a time period of less than 3 years after the
date of injury or less than 1 year after the claimant
discovers, or through the use of reasonable diligence should
have discovered, the injury, for the filing of a health care
lawsuit;
(2) that specifies a different time period for the filing of
lawsuits by a minor;
(3) that triggers the time period based on the date of the
alleged negligence; or
(4) establishes a statute of repose for the filing of health
care lawsuit.
SEC. 3. COMPENSATING PATIENT INJURY.
(a) Unlimited Amount of Damages for Actual Economic Losses in Health
Care Lawsuits.--In any health care lawsuit, nothing in this Act shall
limit a claimant's recovery of the full amount of the available
economic damages, notwithstanding the limitation in subsection (b).
(b) Additional Noneconomic Damages.--In any health care lawsuit, the
amount of noneconomic damages, if available, shall not exceed $250,000,
regardless of the number of parties against whom the action is brought
or the number of separate claims or actions brought with respect to the
same injury.
(c) No Discount of Award for Noneconomic Damages.--For purposes of
applying the limitation in subsection (b), future noneconomic damages
shall not be discounted to present value. The jury shall not be
informed about the maximum award for noneconomic damages. An award for
noneconomic damages in excess of $250,000 shall be reduced either
before the entry of judgment, or by amendment of the judgment after
entry of judgment, and such reduction shall be made before accounting
for any other reduction in damages required by law. If separate awards
are rendered for past and future noneconomic damages and the combined
awards exceed $250,000, the future noneconomic damages shall be reduced
first.
(d) Fair Share Rule.--In any health care lawsuit, each party shall be
liable for that party's several share of any damages only and not for
the share of any other person. Each party shall be liable only for the
amount of damages allocated to such party in direct proportion to such
party's percentage of responsibility. Whenever a judgment of liability
is rendered as to any party, a separate judgment shall be rendered
against each such party for the amount allocated to such party. For
purposes of this section, the trier of fact shall determine the
proportion of responsibility of each party for the claimant's harm.
(e) State Flexibility.--No provision of this section shall be
construed to preempt any State law (whether effective before, on, or
after the date of the enactment of this Act) that specifies a
particular monetary amount of economic or noneconomic damages (or the
total amount of damages) that may be awarded in a health care lawsuit,
regardless of whether such monetary amount is greater or lesser than is
provided for under this section.
SEC. 4. MAXIMIZING PATIENT RECOVERY.
(a) Court Supervision of Share of Damages Actually Paid to
Claimants.--In any health care lawsuit, the court shall supervise the
arrangements for payment of damages to protect against conflicts of
interest that may have the effect of reducing the amount of damages
awarded that are actually paid to claimants. In particular, in any
health care lawsuit in which the attorney for a party claims a
financial stake in the outcome by virtue of a contingent fee, the court
shall have the power to restrict the payment of a claimant's damage
recovery to such attorney, and to redirect such damages to the claimant
based upon the interests of justice and principles of equity. In no
event shall the total of all contingent fees for representing all
claimants in a health care lawsuit exceed the following limits:
(1) Forty percent of the first $50,000 recovered by the
claimant(s).
(2) Thirty-three and one-third percent of the next $50,000
recovered by the claimant(s).
(3) Twenty-five percent of the next $500,000 recovered by the
claimant(s).
(4) Fifteen percent of any amount by which the recovery by
the claimant(s) is in excess of $600,000.
(b) Applicability.--The limitations in this section shall apply
whether the recovery is by judgment, settlement, mediation,
arbitration, or any other form of alternative dispute resolution. In a
health care lawsuit involving a minor or incompetent person, a court
retains the authority to authorize or approve a fee that is less than
the maximum permitted under this section. The requirement for court
supervision in the first two sentences of subsection (a) applies only
in civil actions.
(c) State Flexibility.--No provision of this section shall be
construed to preempt any State law (whether effective before, on, or
after the date of the enactment of this Act) that specifies a lesser
percentage or lesser total value of damages which may be claimed by an
attorney representing a claimant in a health care lawsuit.
SEC. 5. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO CLAIMANTS IN
HEALTH CARE LAWSUITS.
(a) In General.--In any health care lawsuit, if an award of future
damages, without reduction to present value, equaling or exceeding
$50,000 is made against a party with sufficient insurance or other
assets to fund a periodic payment of such a judgment, the court shall,
at the request of any party, enter a judgment ordering that the future
damages be paid by periodic payments, in accordance with the Uniform
Periodic Payment of Judgments Act promulgated by the National
Conference of Commissioners on Uniform State Laws.
(b) Applicability.--This section applies to all actions which have
not been first set for trial or retrial before the effective date of
this Act.
(c) State Flexibility.--No provision of this section shall be
construed to preempt any State law (whether effective before, on, or
after the date of the enactment of this Act) that specifies periodic
payments for future damages at any amount other than $50,000 or that
mandates such payments absent the request of either party.
SEC. 6. PRODUCT LIABILITY FOR HEALTH CARE PROVIDERS.
A health care provider who prescribes, or who dispenses pursuant to a
prescription, a medical product approved, licensed, or cleared by the
Food and Drug Administration shall not be named as a party to a product
liability lawsuit involving such product and shall not be liable to a
claimant in a class action lawsuit against the manufacturer,
distributor, or seller of such product.
SEC. 7. DEFINITIONS.
In this Act:
(1) Alternative dispute resolution system; adr.--The term
``alternative dispute resolution system'' or ``ADR'' means a
system that provides for the resolution of health care lawsuits
in a manner other than through a civil action brought in a
State or Federal court.
(2) Claimant.--The term ``claimant'' means any person who
brings a health care lawsuit, including a person who asserts or
claims a right to legal or equitable contribution, indemnity,
or subrogation, arising out of a health care liability claim or
action, and any person on whose behalf such a claim is asserted
or such an action is brought, whether deceased, incompetent, or
a minor.
(3) Collateral source benefits.--The term ``collateral source
benefits'' means any amount paid or reasonably likely to be
paid in the future to or on behalf of the claimant, or any
service, product, or other benefit provided or reasonably
likely to be provided in the future to or on behalf of the
claimant, as a result of the injury or wrongful death, pursuant
to--
(A) any State or Federal health, sickness, income-
disability, accident, or workers' compensation law;
(B) any health, sickness, income-disability, or
accident insurance that provides health benefits or
income-disability coverage;
(C) any contract or agreement of any group,
organization, partnership, or corporation to provide,
pay for, or reimburse the cost of medical, hospital,
dental, or income-disability benefits; and
(D) any other publicly or privately funded program.
(4) Contingent fee.--The term ``contingent fee'' includes all
compensation to any person or persons which is payable only if
a recovery is effected on behalf of one or more claimants.
(5) Economic damages.--The term ``economic damages'' means
objectively verifiable monetary losses incurred as a result of
the provision or use of (or failure to provide or use) health
care services or medical products, such as past and future
medical expenses, loss of past and future earnings, cost of
obtaining domestic services, loss of employment, and loss of
business or employment opportunities, unless otherwise defined
under applicable state law. In no circumstances shall damages
for health care services or medical products exceed the amount
actually paid or incurred by or on behalf of the claimant.
(6) Future damages.--The term ``future damages'' means any
damages that are incurred after the date of judgment,
settlement, or other resolution (including mediation, or any
other form of alternative dispute resolution).
(7) Health care lawsuit.--The term ``health care lawsuit''
means any health care liability claim concerning the provision
of goods or services for which coverage was provided in whole
or in part via a Federal program, subsidy or tax benefit, or
any health care liability action concerning the provision of
goods or services for which coverage was provided in whole or
in part via a Federal program, subsidy or tax benefit, brought
in a State or Federal court or pursuant to an alternative
dispute resolution system, against a health care provider
regardless of the theory of liability on which the claim is
based, or the number of claimants, plaintiffs, defendants, or
other parties, or the number of claims or causes of action, in
which the claimant alleges a health care liability claim. Such
term does not include a claim or action which is based on
criminal liability; which seeks civil fines or penalties paid
to Federal, State, or local government; or which is grounded in
antitrust.
(8) Health care liability action.--The term ``health care
liability action'' means a civil action brought in a State or
Federal court or pursuant to an alternative dispute resolution
system, against a health care provider regardless of the theory
of liability on which the claim is based, or the number of
plaintiffs, defendants, or other parties, or the number of
causes of action, in which the claimant alleges a health care
liability claim.
(9) Health care liability claim.--The term ``health care
liability claim'' means a demand by any person, whether or not
pursuant to ADR, against a health care provider, including, but
not limited to, third-party claims, cross-claims, counter-
claims, or contribution claims, which are based upon the
provision or use of (or the failure to provide or use) health
care services or medical products, regardless of the theory of
liability on which the claim is based, or the number of
plaintiffs, defendants, or other parties, or the number of
causes of action.
(10) Health care provider.--The term ``health care provider''
means any person or entity required by State or Federal laws or
regulations to be licensed, registered, or certified to provide
health care services, and being either so licensed, registered,
or certified, or exempted from such requirement by other
statute or regulation, as well as any other individual or
entity defined as a health care provider, health care
professional, or health care institution under state law.
(11) Health care services.--The term ``health care services''
means the provision of any goods or services by a health care
provider, or by any individual working under the supervision of
a health care provider, that relates to the diagnosis,
prevention, or treatment of any human disease or impairment, or
the assessment or care of the health of human beings.
(12) Medical product.--The term ``medical product'' means a
drug, device, or biological product intended for humans, and
the terms ``drug'', ``device'', and ``biological product'' have
the meanings given such terms in sections 201(g)(1) and 201(h)
of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 321(g)(1)
and (h)) and section 351(a) of the Public Health Service Act
(42 U.S.C. 262(a)), respectively, including any component or
raw material used therein, but excluding health care services.
(13) Noneconomic damages.--The term ``noneconomic damages''
means damages for physical and emotional pain, suffering,
inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of domestic
service), hedonic damages, injury to reputation, and all other
nonpecuniary losses of any kind or nature incurred as a result
of the provision or use of (or failure to provide or use)
health care services or medical products, unless otherwise
defined under applicable state law.
(14) Recovery.--The term ``recovery'' means the net sum
recovered after deducting any disbursements or costs incurred
in connection with prosecution or settlement of the claim,
including all costs paid or advanced by any person. Costs of
health care incurred by the plaintiff and the attorneys' office
overhead costs or charges for legal services are not deductible
disbursements or costs for such purpose.
(15) Representative.--The term ``representative'' means a
legal guardian, attorney, person designated to make decisions
on behalf of a patient under a medical power of attorney, or
any person recognized in law or custom as a patient's agent.
(16) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, the Trust Territory of the Pacific Islands,
and any other territory or possession of the United States, or
any political subdivision thereof.
SEC. 8. EFFECT ON OTHER LAWS.
(a) Vaccine Injury.--
(1) To the extent that title XXI of the Public Health Service
Act establishes a Federal rule of law applicable to a civil
action brought for a vaccine-related injury or death--
(A) this Act does not affect the application of the
rule of law to such an action; and
(B) any rule of law prescribed by this Act in
conflict with a rule of law of such title XXI shall not
apply to such action.
(2) If there is an aspect of a civil action brought for a
vaccine-related injury or death to which a Federal rule of law
under title XXI of the Public Health Service Act does not
apply, then this Act or otherwise applicable law (as determined
under this Act) will apply to such aspect of such action.
(b) Other Federal Law.--Except as provided in this section, nothing
in this Act shall be deemed to affect any defense available to a
defendant in a health care lawsuit or action under any other provision
of Federal law.
SEC. 9. RULES OF CONSTRUCTION.
(a) Health Care Lawsuits.--Unless otherwise specified in this Act,
the provisions governing health care lawsuits set forth in this Act
preempt, subject to subsections (b) and (c), State law to the extent
that State law prevents the application of any provisions of law
established by or under this Act. The provisions governing health care
lawsuits set forth in this Act supersede chapter 171 of title 28,
United States Code, to the extent that such chapter--
(1) provides for a greater amount of damages or contingent
fees, a longer period in which a health care lawsuit may be
commenced, or a reduced applicability or scope of periodic
payment of future damages, than provided in this Act; or
(2) prohibits the introduction of evidence regarding
collateral source benefits, or mandates or permits subrogation
or a lien on collateral source benefits.
(b) Protection of States' Rights and Other Laws.--Any issue that is
not governed by any provision of law established by or under this Act
(including State standards of negligence) shall be governed by
otherwise applicable State or Federal law
(c) State Flexibility.--No provision of this Act shall be construed
to preempt any defense available to a party in a health care lawsuit
under any other provision of State or Federal law.
SEC. 10. EFFECTIVE DATE.
This Act shall apply to any health care lawsuit brought in a Federal
or State court, or subject to an alternative dispute resolution system,
that is initiated on or after the date of the enactment of this Act,
except that any health care lawsuit arising from an injury occurring
prior to the date of the enactment of this Act shall be governed by the
applicable statute of limitations provisions in effect at the time the
cause of action accrued.
Purpose and Summary
The Protecting Access to Care Act's reforms are premised on
the need to provide checks and balances on otherwise unlimited
lawsuits that increase the cost of health care and limit the
availability of doctors nationwide. The Protecting Access to
Care Act also contains an explicit Federal nexus: the bill's
reforms only apply to lawsuits ``concerning the provision of
[health care] goods or services for which coverage was provided
in whole or in part via a Federal program, subsidy or tax
benefit.'' Wherever Federal policy affects the distribution of
health care, there is a clear Federal interest in reducing the
costs of such Federal policies.
The bill also includes provisions in each section that
allow states to opt-out of each provision provided they have
their own limits on non-economic damages in place (either
higher or lower than that set out in the bill), or they have
other limits that provide the same or greater protections as
those provided for in the bill.
Background and Need for the Legislation
The Protecting Access to Care Act's reforms are necessary
to help improve health care, make it more affordable, and save
Federal taxpayer money while reducing the Federal debt. The
Protecting Access to Care Act, modeled after California's
decades-old and highly successful health care litigation
reforms, would rein in unlimited lawsuits and thereby make
health care delivery more accessible and cost-effective in the
United States. California's Medical Injury Compensation Reform
Act (``MICRA''), which was signed into law by Governor Jerry
Brown in 1976, has proved immensely successful in increasing
access to affordable medical care, and those proven reforms
should be applied to contain costs in circumstances in which
health care is provided through Federal programs and policies.
MICRA's reforms, which have been the law in California for
over 40 years, include a $250,000 cap on noneconomic damages,
limits on the contingency fees lawyers can charge to maximize
victim recoveries; and authorization for courts to require
periodic payments for future damages instead of lump sum awards
to prevent bankruptcies in which plaintiff's would receive only
pennies on the dollar. The Protecting Access to Care Act also
includes provisions creating a ``fair share'' rule, by which
damages are allocated fairly, in direct proportion to fault.
Finally, the Protecting Access to Care Act will accomplish
reform without in any way limiting compensation for 100% of
plaintiffs' economic losses (anything to which a receipt can be
attached), including their medical costs, their lost wages,
their future lost wages, rehabilitation costs, and any other
economic out-of-pocket loss suffered as the result of a health
care injury. And again, the Protecting Access to Care Act
applies only to cases in which health care is provided through
Federal programs and under Federal subsidies or tax benefits.
THE CONGRESSIONAL BUDGET OFFICE (CBO)
The Congressional Budget Office (CBO) has concluded that
the legal reform package in the Protecting Access to Care Act
would reduce the Federal budget deficit by billions of dollars
over the next 10 years. CBO recognizes that civil justice
reforms also have an impact on the practice of ``defensive
medicine.'' Defensive medicine occurs when doctors order more
tests or procedures than are truly necessary just to protect
themselves from lawsuits. Studies show that defensive medicine
does not advance patient care or enhance a physician's
diagnostic capabilities.
According to one CBO report, ``CBO estimates that, under
[these legal reforms], premiums for medical malpractice
insurance ultimately would be an average of 25 percent to 30
percent below what they would be under current law.''\1\ Lower
health care lawsuit liability premiums would reduce health care
costs for everyone and increase the supply of doctors. Further,
CBO observed that an ``analysis [of these legal reforms]
indicated that certain tort limitations, primarily caps on
awards . . . effectively reduce average premiums for medical
malpractice insurance.''\2\
---------------------------------------------------------------------------
\1\Congressional Budget Office Cost Estimate of H.R. 4600 (the
HEALTH Act) (September 24, 2002).
\2\Id.
---------------------------------------------------------------------------
By incorporating MICRA's time-tested reforms at the Federal
level, the Protecting Access to Care Act will make medical
malpractice insurance affordable again, encourage health care
practitioners to maintain their practices, and reduce health
care costs for patients. Its enactment will particularly help
traditionally under-served rural and inner city communities,
and women seeking obstetrics care.
THE GOVERNMENT ACCOUNTABILITY OFFICE (GAO)
The Government Accountability Office (GAO) found that
rising litigation awards are responsible for skyrocketing
medical professional liability premiums. The report stated that
``GAO found that losses on medical malpractice claims--which
make up the largest part of insurers' costs--appear to be the
primary driver of rate increases in the long run . . .''\3\ GAO
also concluded that insurer profits ``are not increasing,
indicating that insurers are not charging and profiting from
excessively high premium rates'' and that ``in most states the
insurance regulators have the authority to deny premium rate
increases they deem excessive.''\4\
---------------------------------------------------------------------------
\3\General Accounting Office, ``Medical Malpractice Insurance,''
GAO-03-702 (June 2003) at ``Highlights,'' 4, and 25 (emphasis added).
\4\Id. at 32.
---------------------------------------------------------------------------
REAGAN ADMINISTRATION
President Ronald Reagan established a special task force to
study the need for tort reform. That task force, called the
Tort Policy Working Group, consisted of representatives of ten
Reagan administration agencies and the White House. The final
report of that task force concluded as follows: ``In sum, tort
law appears to be a major cause of the insurance availability/
affordability crisis which the Federal Government can and
should address in a variety of sensible and appropriate ways.''
Indeed, the Reagan task force specifically recommended
``eliminate joint and several liability,''\5\ ``provide for
periodic payments of future economic damages,'' \6\ ``schedule
[limit] contingency fees'' \7\ of attorneys, and ``limit non-
economic damages to a fair and reasonable amount.''\8\ Indeed,
regarding the limit on non-economic damages, the report
concluded:
---------------------------------------------------------------------------
\5\Report of the Tort Policy Working Group on the Causes, Extent
and Policy Implications of the Current Crisis in Insurance Availability
and Affordability (February 1986), at 64.
\6\Id. at 69.
\7\Id. at 72.
\8\Id. at 66.
Recommendation No. 4: Limit non-economic damages to
a fair and reasonable amount.
Non-economic damages such as pain and suffering, mental
anguish and punitive damages are inherently open-ended.
They are entirely subjective, and often defy
quantification . . . Moreover, because such damages are
essentially subjective, awards for similar injuries can
vary immensely from case to case, leading to highly
inequitable, lottery-like results. Accordingly, such
damages are particularly suitable for a specific
limitation.''\9\
---------------------------------------------------------------------------
\9\Id. at 66.
All of these recommended reforms are part of the Protecting
Access to Care Act.
SUPPORT FOR THE PROTECTING ACCESS TO CARE ACT BY THE NATIONAL
COMMISSION ON FISCAL RESPONSIBILITY AND REFORM
The National Commission on Fiscal Responsibility and Reform
supports health care litigation reform in its final December
2010 report. As the Commission states in a report that was
endorsed by 61% of its members (by a vote of 11-7):
Most experts agree that the current tort system in the
United States leads to an increase in health care
costs. This is true both because of direct costs--
higher malpractice insurance premiums--and indirect
costs in the form of over-utilization of diagnostic and
related services (sometimes referred to as ``defensive
medicine''). The Commission recommends an aggressive
set of reforms to the tort system.
Among the policies pursued, the following should be
included: . . . Imposing a statute of limitations--
perhaps one to 3 years--on medical malpractice lawsuits
. . . Replacing joint-and-several liability with a
fair-share rule, under which a defendant in a lawsuit
would be liable only for the percentage of the final
award that was equal to his or her share of
responsibility for the injury . . .
Many members of the Commission also believe that we
should impose statutory caps on . . . non-economic
damages, and we recommend that Congress consider this
approach and evaluate its impact.\10\
---------------------------------------------------------------------------
\10\The National Commission on Fiscal Responsibility and Reform,
``The Moment of Truth'' (December 2010) at 34-35.
All these recommended reforms are included in the
Protecting Access to Care Act.
SUPPORT FOR HEALTH CARE LAWSUIT REFORM BY USA TODAY
The USA Today editorial board came out supporting these
Federal reforms, stating:
A study . . . by the Massachusetts Medical Society
found that 83% of its doctors practice defensive
medicine at a cost of at least $1.4 billion a year.
Nationally, the cost is $60 billion-plus, according to
the Health and Human Services Department . . . The
liability system is too often a lottery. Excessive
compensation is awarded to some patients and little or
none to others. As much as 60% of awards are spent on
attorneys, expert witnesses and administrative expenses
. . . The current system is arbitrary, inefficient and
results in years of delay.\11\
---------------------------------------------------------------------------
\11\USA Today editorial, ``Our View on `Defensive' Medicine:
Lawyers' Bills Pile High, Driving Up Health Care Costs,'' USA Today
(December 29, 2008).
The editors of USA Today also concluded that ``one glaring
omission [from Federal law] was significant tort reform, which
was opposed by trial lawyers and their Democratic allies. CBO
estimates that restricting malpractice suits would save $54
billion over 10 years by curbing tests and procedures that
patients don't really need. So why not add it?''\12\
---------------------------------------------------------------------------
\12\USA Today editorial, ``Don't try to repeal the new health care
law--improve it'' (November 18, 2010) at 9A.
---------------------------------------------------------------------------
Enactment of the Protecting Access to Care Act will not
result in more medical malpractice cases being brought in
Federal court than would be brought in Federal court otherwise.
The Supreme Court has held that a ``federal standard'' does not
confer Federal question jurisdiction in the absence of
Congressional creation of a Federal cause of action.\13\
---------------------------------------------------------------------------
\13\See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813
(1986).
---------------------------------------------------------------------------
Finally, many State supreme courts have judicially
nullified reasonable litigation management provisions enacted
by State legislatures, many of which sought to address the
crisis in medical professional liability that reduces patients'
access to health care. Consequently, in such States, passage of
Federal legislation by Congress may be the only means of
addressing the States' medical professional liability regime
and restoring patients' access to health care. Laws passed by
States that have already provided for, or may in the future
provide for, different limits on damages in health care
lawsuits will be preserved under the Protecting Access to Care
Act.
THE HUGE COSTS OF DEFENSIVE MEDICINE ARE PASSED ON
TO FEDERAL TAXPAYERS
As reported in The Washington Post, ``U.S. health-care
spending . . . is projected to accelerate over the next decade
. . . [A] study, by the Centers for Medicare and Medicaid
Services, projects that the average growth in health spending
will be even faster between 2016 and 2025 . . . The projections
are based on an assumption that the legislative status quo will
prevail.''\14\
---------------------------------------------------------------------------
\14\Carolyn Y. Johnson, ``Why America's Health-Care Spending Is
Projected To Soar Over the Next Decade,'' Wash. Post (Feb. 15, 2017).
---------------------------------------------------------------------------
As Nate Silver has pointed out in The New York Times:
``[A]ll of the major categories of [federal] government
spending have been increasing relative to inflation. But
essentially all of the increase in spending relative to
economic growth, and the potential tax base, has come from
entitlement programs, and about half of that has come from
health care entitlements specifically.''\15\
---------------------------------------------------------------------------
\15\See https://fivethirtyeight.blogs.nytimes.com/2013/01/16/what-
is-driving-growth-in-
government-spending/?_r=2.
---------------------------------------------------------------------------
As health care costs rise, wages fall, and the more
companies must pay in health care costs, the less they can pay
in wages. Just look at this chart published in the Journal of
the American Medical Association.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The top line shows the growth in health care costs. The
bottom line shows the growth in wages. The chart shows that
when health care cost growth slows, wages go up. But as health
care cost growth increases, wages stagnate, and when health
costs grew at a slower rate--as in the mid-2000's--wages
rebounded again.
If you want to increase wages, vote for this bill, because
one of the drivers of higher health care spending is so-called
``defensive medicine,'' a very real phenomenon confirmed by
countless studies, in which health care workers conduct many
additional costly tests and procedures with no medical value--
charged to Federal taxpayers--simply to avoid excessive
litigation costs.
A survey published in the Archives of Internal Medicine
found that 91% of the over one thousand doctors surveyed
``reported believing that physicians order more tests and
procedures than needed to protect themselves from malpractice
suits.'' The survey also asked ``Are protections against
unwarranted malpractice lawsuits needed to decrease the
unnecessary use of diagnostic tests?'' Overall, 91 percent of
doctors surveyed agreed.\16\
---------------------------------------------------------------------------
\16\See Tara F. Bishop, MD, Alex D. Federman, MD, MPH, Salomeh
Keyhani, MD, MPH, ``Physicians' Views on Defensive Medicine: A National
Survey'' Arch. Intern. Med. 2010; 170(12): 1081-1083.
---------------------------------------------------------------------------
One Newsweek reporter described the personal experience of
individual doctors this way:
``[T]ypical was [one doctor], who had a list as long as
my arm of procedures ER docs perform . . . for no
patient benefit. They include following a bedside
sonogram . . . with an ``official'' sonogram [because]
it's easier to defend yourself to a jury if you've
ordered the second one; a CT scan for every child who
bumped his or her head (to rule out things that can be
diagnosed just fine by observation); X-rays that do not
guide treatment, such as for a simple broken arm; CTs
for suspected appendicitis that has been perfectly well
diagnosed without it . . . [A]lthough doctors may hate
practicing defensive medicine, they do it so they don't
get sued . . . Nationwide, physicians estimate that 35
percent of diagnostic tests they ordered were to avoid
lawsuits, as were 19 percent of hospitalizations, 14
percent of prescriptions, and 8 percent of surgeries .
. . All told, it adds up to $650 billion in unnecessary
care every year . . . Another [ER doctor] said he
ordered 52 CT scans in one 12-hour shift: ``That's $104
thousand dollars in 1 day.''\17\
---------------------------------------------------------------------------
\17\Sharon Begley, ``Block That CT Scan!--Despite the massive
overhaul of health care passed by Congress, many costs will remain
high, thanks to doctors' fears of potential lawsuits,'' Newsweek (March
22, 2010).
The most recent study, published a few months ago in the
Journal of the American College of Radiology, studied the
effects of tort reform on just radiographic tests alone and
found that there were ``2.4 million to 2.7 million fewer
radiographic tests annually attributed to tort reforms.'' Just
imagine what savings would occur if such reforms were attached
to all Federal health care programs, as this bill would do.
REDUCING UNLIMITED LAWSUITS WILL HELP REDUCE
MEDICAL ERRORS
The best evidence about medical injuries comes from two
large studies of hospital records, which both concluded that
under one percent of hospital charts showed negligent medical
injury.\18\ Nevertheless, the litigation reforms in the
Protecting Access to Care Act will reduce the incidence of
medical malpractice because the threat of potentially infinite
liability in an unregulated tort system prevents doctors from
discussing medical errors and looking for ways to improve the
delivery of health care.
---------------------------------------------------------------------------
\18\D. Mills, J. Boyden, and D. Rubsamen, ``Report on the Medical
Insurance Feasibility Study,'' (San Francisco: Sutter Publications
1977, sponsored jointly by the California Medical Association and
California Hospital Association); A. Localio, A. Lawthers, T. Brennan,
N. Laird, L. Hebert, L. Peterson, J. Newhouse, P. Weiler, and H. Hiatt,
``Relation Between Malpractice Claims and Adverse Events Due to
Negligence,'' New Engl. J. Med. 325:245-251 (1991).
---------------------------------------------------------------------------
The Protecting Access to Care Act would largely dispel that
fear and allow doctors to freely suggest improvements in
medical care. The medical journal Annals of Medicine details
reports of medical errors. As it has reported, ``[c]reating a
series of articles on [medical] mistakes was the idea of Dr.
Robert M. Wachter, associate chairman of the department of
medicine at the University of California at San Francisco . . .
The series was inspired in part by a 1999 report by the
Institute of Medicine, which found that mistakes in hospitals
killed 44,000 to 98,000 patients a year . . . In an editorial
about the new series, Dr. Wachter and his colleagues wrote that
the medical profession `for reasons that include liability
issues . . . was not harnessing the full power of errors to
teach [and thereby reduce errors].'''\19\
---------------------------------------------------------------------------
\19\Denise Grady, ``Oops, Wrong Patient: Journal Takes on Medical
Mistakes,'' The New York Times (June 18, 2002).
---------------------------------------------------------------------------
A survey conducted for the bipartisan legal reform
organization ``Common Good,'' whose Board of Advisors included
former Senator George McGovern, Eric Holder, and former Senator
Paul Simon, found that more than three-fourths of physicians
feel that concern about malpractice litigation has hurt their
ability to provide quality care in recent years. When
physicians were asked, ``Generally speaking, how much do you
think that fear of liability discourages medical professionals
from openly discussing and thinking of ways to reduce medical
errors?'' an astonishing 59% of physicians replied ``a
lot.''\20\
---------------------------------------------------------------------------
\20\See Harris Interactive, ``Common Good Fear of Litigation Study:
The Impact of Medicine,'' Final Report (April 11, 2002) (``Executive
Summary'') at 30 (Table 17), available at www.ourcommongood.com/
news.html.
---------------------------------------------------------------------------
THE CURRENT SYSTEM IS CAUSING A DOCTOR SHORTAGE
Lawsuit abuse drives doctors out of practice. There is a
well-documented record of doctors leaving the practice of
medicine and hospitals shutting down particular practices that
have high liability exposure. This problem has been
particularly acute in the fields of ob-gyn and trauma care, as
well as in rural areas.\21\
---------------------------------------------------------------------------
\21\For an extensive compilation of such instances see ``Addressing
the New Health Care Crisis: Reforming the Medical Litigation System to
Improve the Quality of Care,'' U.S. Department of Health and Human
Services (March 3, 2003).
---------------------------------------------------------------------------
The absence of doctors in vital practice areas is at best
an inconvenience; at worst it can have deadly consequences.\22\
Hundreds or even thousands of patients may die annually due to
lack of doctors.\23\
---------------------------------------------------------------------------
\22\See Hearing on Patient Access Crisis: The Role of Medical
Litigation Before S. Comm. on the Judiciary (2003) (testimony of Leanne
Dyess); Hearing on Medical Liability Reform: Stopping the Skyrocketing
Price of Health care Before H. Comm. on Small Business (2005)
(testimony of Dr. Thomas Gleason).
\23\See Testimony of Theodore Frank, ``Protecting Main Street from
Lawsuit Abuse,'' Senate Republican Conference (March 16, 2009) (``The
effect of the loss of productive doctors and the closing of emergency
rooms . . . is in the hundreds of lives a year, and perhaps as high as
1,000 deaths and many exacerbated injuries.''); ``Tort Reform and
Accidental Deaths,'' Paul Rubin and Joanna Shepherd, Emory Law and
Economics Research Paper No. 05-17H (finding tort reforms saved
approximately 2,000 lives in the year 2000 and 24,000 over a 20-year
period).
---------------------------------------------------------------------------
According to the Massachusetts study, 38 percent of
physicians have reduced the number of higher-risk procedures
they provide, and 28 percent have reduced the number of higher-
risk patients they serve, out of fear of liability.\24\ The
American College of Obstetricians and Gynecologists has
concluded that the ``current medico-legal environment continues
to deprive women of all ages, especially pregnant women, of
their most educated and experienced women's health care
providers.''\25\
---------------------------------------------------------------------------
\24\``Defensive Medicine in Massachusetts,'' pp. 4-5.
\25\``Overview of the 2009 ACOG Survey on Professional Liability.''
---------------------------------------------------------------------------
As one doctor wrote:
I am what you call a successful neurosurgeon, and I
have nothing against ``socialized medicine'' as such.
Everybody deserves good health care. But I am
nonetheless worried about President Obama's health care
reform, because without tort reform as part of the
package, it can't address the labor shortage we face in
my specialty. . . .
Only because spinal problems affect nearly 80% of our
aging population: It's one of the most common reasons
patients visit a primary care physician, right behind
the yearly physical, the common cold, prenatal care and
anxiety-related disorders. Baby boomers are about to
overwhelm the system with demand for treatment of
spinal problems--including surgery--at precisely the
moment the supply of neurosurgeons able to treat them
is dwindling. . . .
Thus we come to the second reason: the cost of
malpractice insurance, which creates a very high cost
of entry into this field. Unfortunately, the health
care reforms of the Obama administration have done
little to curb costs. These costs are imposed by
hospital inefficiencies as unpoliced by government-run
insurance plans and by the price of malpractice
insurance undisciplined by tort reform.
I believe that tort reform is the key to reducing both
kinds of cost, because the malignant threat of
malpractice haunts the hospitals as well as the
physicians. Without such reform, the choice for
practicing neurosurgeons like me is between retirement
and working 24/7 just to cover my insurance overhead.
My premature retirement will reduce the supply of
surgeons capable of dealing with the spinal problems of
an aging population--and that supply is already short
and getting shorter. Meanwhile, a few more board-
certified surgeons a year won't meet the growing
demand. The lines at your doctor's office could get
long.
When Congress returns to consider the problem of health
care, it must understand that without tort reform,
neurosurgery of the kind I can provide to an aging
population will be unavailable.\26\
---------------------------------------------------------------------------
\26\Dr. Michael Lavyne, ``Obamacare Will Fail Without Tort Reforn:
Malpractice Insurance Costs Are Crippling Medicine,'' New York Daily
News (November 19, 2010).
A study from Northwestern University's Feinberg School of
Medicine polled residents and found that many wish to leave the
state to avoid its ``hostile'' malpractice environment. The
study concluded that ``Approximately one-half of graduating
Illinois residents and fellows are leaving the state to
practice . . . [T]he medical malpractice liability environment
is a major consideration for those that plan to leave Illinois
to practice.''\27\ Without a uniform law to control health care
costs, many states will continue to suffer under doctor
shortages.
---------------------------------------------------------------------------
\27\Northwestern University Feinberg School of Medicine, ``Illinois
New Physician Workforce Study: Final Report November 2010) at 4.
---------------------------------------------------------------------------
As one local New Jersey official has written:
Let's say you are a woman over 40 who follows the
American Cancer Society guidelines (regardless of the
recent controversy about them) and faithfully gets a
mammogram each year.
What would you do if you tried to make your 2010
appointment, only to learn this test is no longer
available anywhere in the state? Would you take a day
off from work to travel to Pennsylvania--or forgo your
screening entirely?
Unfortunately, this is a very real possibility for New
Jersey women. Eighty-nine percent of radiologists
surveyed by the New Jersey Medical Care Availability
Task Force said that new doctors in their specialty are
unwilling to perform mammography or have asked for
limited exposure to it.
Or, imagine getting pregnant and having your
obstetrician tell you that you fall into a high-risk
category. The good news is that you can be effectively
treated by a specialist. The bad news? The closest
specialist is in upstate New York. Do you leave your
family for days at a time? Do you take a risk and allow
your regular physician to do the best she can? This is
a decision no woman should have to make, but many may
face. Hospitals in New Jersey have reported a serious
decline in the number of applicants for specialized
obstetrics training--and no new candidates means
steadily decreasing access to care.
Even as debate about national health care reform rages
across the country, we in New Jersey must confront a
homegrown crisis: Our state is losing doctors at an
alarming rate. With or without a Federal mandate, if
there are no doctors to treat New Jersey's patients,
the details don't matter.
Why the exodus of physicians? To a significant degree,
they are fleeing malpractice insurance premiums and
legal exposure so enormous as to make the practice of
many medical specialties in our state near untenable.
. . . Medical malpractice liability premiums had
already spiraled out of control back in 2002, when huge
crowds of physicians donned their white coats and
demonstrated at the Statehouse to draw attention to the
need for reform. Around the same time, Dr. Dolores
Williams, an obstetrician, testified before an Assembly
joint committee that her insurance premiums--which had
escalated from $30,000 to an estimated $72,000--left
her financially unable to continue delivering babies.
Her decision to stop, she said, ``was based on possibly
losing my home, my assets, [and] my ability to fund my
children's college tuition.''
Seven years later, these problems have only gotten
worse, not only in obstetrics but in a range of other
specialties like orthopedics and neonatology.
``The cumulative effect of medical malpractice claims
on the health care system in New Jersey is alarming,''
agrees Marcus Rayner, executive director of the New
Jersey Lawsuit Reform Alliance. ``Due to skyrocketing
medical malpractice insurance premiums and the threat
of a lawsuit, hospitals have fewer OB-GYNs willing to
work in emergency departments, and fewer specialty
physicians willing to work at all.''
Five years ago, a survey of New Jersey's neurosurgeons
indicated that there were only 63 remaining in the
state--to serve a population of more than 8.5 million.
Someday it could be your teenager who suffers a head
injury in a sports or car accident, and urgently needs
the care of a neurosurgeon. What are the odds that one
would be available?\28\
---------------------------------------------------------------------------
\28\Amy H. Handlin, ``Reduce Medical Liability Costs Before More
Specialists Flee N.J.,'' New Jersey Times (November 22, 2009).
It is clear that no doctor is safe from lawsuit abuse, but
as studies have shown, some are more vulnerable to abusive
litigation than others because of their specialty or the
location of their practice. Today, one-third of orthopedists,
trauma surgeons, ER doctors and plastic surgeons will probably
be sued in any given year.\29\ Neurosurgeons face liability
lawsuits more often--every 2 years on average.\30\
---------------------------------------------------------------------------
\29\``Defending the Practice of Medicine,'' Richard E. Anderson,
M.D., Archives of Internal Medicine, June 2004.
\30\``Effective Legal Reform and the Malpractice Insurance
Crisis,'' Richard E. Anderson, M.D., Yale Journal of Health Policy, Law
and Ethics, December 2004.
---------------------------------------------------------------------------
OB-GYN physicians are another favorite target of personal
injury lawyers with nearly three out of five OB-GYNs sued at
least twice in their careers. The American College of
Obstetricians and Gynecologists (ACOG) 2009 Medical Liability
Survey found nearly 91 percent of OB-GYNs surveyed had
experienced at least one liability claim filed against them
and, sadly we know most of the cases are without merit.\31\
---------------------------------------------------------------------------
\31\American College of Obstetrics and Gynecologists Medical
Liability Survey, 9/09.
---------------------------------------------------------------------------
Three out of four emergency rooms say they have had to
divert ambulances because of a shortage of specialists and more
than 25 percent lost specialist coverage due to medical
liability issues.\32\
---------------------------------------------------------------------------
\32\Hospital Emergency Department Administration Survey, ``Federal
Medical Liability Reform,'' 2004, the Schumacher Group, Alliance of
Specialty Medicine, July 2005.
---------------------------------------------------------------------------
One emergency room physician was quoted as saying, ``The
lack of on-call specialists affects the numbers of patients
referred to tertiary care facilities even for basic specialty
related diseases (like orthopedics). This adds to emergency
department crowding in some facilities, and it means that
patients have to travel across town or greater distances for a
relatively simple problem that could have been resolved if the
specialist had been on call at the initial facility.''\33\
---------------------------------------------------------------------------
\33\``National Report Card on the State of Emergency Medicine,''
American College of Emergency Physicians, 2009.
---------------------------------------------------------------------------
The Association of American Medical Colleges (AAMC) has
predicted that ``the shortage of physicians across all
specialties will more than quadruple to almost 63,000.''\34\
Another group, the American Academy of Family Physicians, has
projected the shortfall of family physicians will reach 149,000
by 2020.\35\
---------------------------------------------------------------------------
\34\Association of American Medical Colleges Center for Workforce
Studies estimates, 9/30/10.
\35\``Doctor Shortage Looms as Primary Care Loses it Pull,'' Janice
Lloyd, USA Today, 8/18/09.
---------------------------------------------------------------------------
THE PROTECTING ACCESS TO CARE ACT ALLOWS UNLIMITED
ECONOMIC DAMAGES
Nothing in the Protecting Access to Care Act denies injured
plaintiffs the ability to obtain adequate redress, including
compensation for 100% of their economic losses (essentially
anything to which a receipt can be attached), including their
medical costs, the costs of pain relief medication, their lost
wages, their future lost wages, rehabilitation costs, and any
other economic out-of-pocket loss suffered as the result of a
health care injury. ``Economic damages'' include anything whose
value can be quantified, including lost wages or home services
(including lost services provided by stay-at-home mothers),
medical costs, the costs of pain reducing drugs and lifetime
rehabilitation care. Indeed, the terms ``noneconomic damages''
and ``pain and suffering damages'' (which the Federal
legislation limits to $250,000 unless a state law provides for
a higher or lower limit) are misnomers: only ``economic
damages''--which the Federal legislation does not limit--can be
used to pay for drugs and services that actually reduce pain.
Cases from California show that reasonable legal reforms
such as those in the Protecting Access to Care Act still allow
for very large, multi-million dollar awards to deserving
victims, including homemakers and children. For example, a 5-
year-old boy with cerebral palsy and quadriplegia was awarded
$84 million in economic damages. A 3-year-old girl with
cerebral palsy was awarded $59 million in economic damages. And
a 30-year-old homemaker with brain damage was awarded $12
million in economic damages.
Hearings
The Committee on the Judiciary held no hearings on H.R.
1215.
Committee Consideration
On February 28, 2017, the Committee met in open session and
ordered the bill H.R. 1215 favorably reported, with an
amendment, by a rollcall vote of 18 to 17, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 1215.
1. An amendment offered by Mr. Conyers to exempt claims
based on intentional tort liability from the bill. Defeated 12-
16.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC).................................
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)...............................
Mr. Biggs (AZ).................................
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 12 16
------------------------------------------------------------------------
2. An amendment offered by Mr. Cohen to exempt from the
bill lawsuits concerning wrong-patient or wrong-site surgeries
and foreign objects left inside body. Defeated 12-16.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL).................................
Mr. Johnson (LA)...............................
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 12 16
------------------------------------------------------------------------
3. An amendment offered by Mr. Johnson (GA) to exempt
lawsuits concerning nursing homes or long-term care facilities
from the bill. Defeated 13-15.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL).................................
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 13 15
------------------------------------------------------------------------
4. An amendment offered by Mr. Johnson (GA) to exempt from
the bill's preemption provision the preemption of any state
constitutional provisions. Passed 16-15.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL).................................
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 16 15
------------------------------------------------------------------------
5. Motion to order the previous question. Passed 19-15.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL).............................. X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 19 15
------------------------------------------------------------------------
6. Motion to reconsider the Johnson Amendment. Passed 19-
15.
ROLLCALL NO. 6
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL).............................. X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 19 15
------------------------------------------------------------------------
7. Motion to order the previous question. Passed 18-16.
ROLLCALL NO. 7
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL).............................. X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 18 16
------------------------------------------------------------------------
8. An amendment offered by Mr. Johnson (GA) to exempt from
the bill's preemption provision the preemption of any state
constitutional provisions. Defeated 17-17.
ROLLCALL NO. 8
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL).............................. X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 17 17
------------------------------------------------------------------------
9. An amendment offered by Ms. Jackson Lee to exempt from
the bill health care lawsuits alleging irreversible injury.
Defeated 14-19.
ROLLCALL NO. 9
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 14 19
------------------------------------------------------------------------
10. An amendment offered by Mr. Swalwell to exempt from the
bill lawsuits concerning faulty medical treatment for injuries
resulting from sexual assault or rape. Defeated 13-17.
ROLLCALL NO. 10
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL).............................. X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 13 17
------------------------------------------------------------------------
11. An amendment by Mr. Raskin to strike the bill's ``fair
share'' provision. Defeated 14-16.
ROLLCALL NO. 11
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 14 16
------------------------------------------------------------------------
12. An amendment in the nature of a substitute offered by
Mr. King. Passed 18-16.
ROLLCALL NO. 12
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 18 16
------------------------------------------------------------------------
13. Final passage. Passed 18-17.
ROLLCALL NO. 13
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 18 17
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1215, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 22, 2017.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1215, the
``Protecting Access to Care Act of 2017.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lara
Robillard, who can be reached at 226-9010.
Sincerely,
Mark P. Hadley
for Keith Hall,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 1215--Protecting Access to Care Act of 2017.
As ordered reported by the House Committee on the Judiciary
on February 28, 2017.
SUMMARY
H.R. 1215 would impose limits on medical malpractice
litigation in state and Federal courts by capping awards and
attorney fees, modifying the statute of limitations, and
eliminating joint and several liability.
CBO expects that enacting H.R. 1215 would, on balance,
lower costs for health care both directly and indirectly:
directly, by lowering premiums for medical liability insurance;
and indirectly, by reducing the use of health care services
prescribed by providers when faced with less pressure from
potential malpractice suits. Those reductions in costs would,
in turn, lead to lower spending in Federal health programs and
to lower premiums for private health insurance.
In total, CBO and the staff of the Joint Committee on
Taxation (JCT) estimate that enacting the legislation would
reduce deficits by about $14 billion over the 2017-2022 period,
and almost $50 billion over the 2017-2027 period. Off-budget
revenues account for about $2 billion of that reduction. CBO
estimates that implementing the legislation would reduce
discretionary costs by about $1.5 billion over the 2017-2027
period, assuming appropriations actions consistent with the
legislation.
CBO estimates that enacting the legislation would not
increase net direct spending or on-budget deficits in any of
the four consecutive 10-year periods beginning in 2028.
H.R. 1215 would preempt state laws governing health care
lawsuits in the areas of statutes of limitation, joint and
several liability, product liability, and contingency fees.
Those preemptions would be intergovernmental mandates as
defined in the Unfunded Mandates Reform Act (UMRA). The bill
also would require courts (including state courts) to direct
periodic payments of damages in some circumstances. CBO
estimates that the costs of complying with those mandates would
be insignificant and well below the threshold established in
UMRA ($78 million in 2017, as adjusted for inflation).
This bill would impose private-sector mandates as defined
in UMRA, on plaintiffs who file medical malpractice claims or
medical product liability claims and on attorneys. CBO
estimates that the aggregate cost of the mandates would exceed
the annual threshold established in UMRA for private-sector
mandates ($156 million in 2017, adjusted annually for
inflation) in at least four of the first five years the
mandates are in effect.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of the legislation is shown
in the following table. The spending effects of this
legislation fall within multiple budget functions, primarily
functions 550 (health) and 570 (Medicare).
These estimates are based on CBO's assumption that the
legislation will be enacted near the beginning of fiscal year
2018. Assuming an earlier enactment date would not change CBO's
estimate of the budgetary effects of the legislation.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
BASIS OF ESTIMATE
The legislation would establish:
LA 3-year statute of limitations for medical
malpractice claims, with certain exceptions, from the
date of an injury;
LA cap of $250,000 on awards for noneconomic
damages;
LReplacement of joint-and-several liability
with a fair-share rule, under which a defendant in a
lawsuit would be liable only for the percentage of the
final award that was equal to his or her share of
responsibility for the injury;
LSliding-scale limits on the contingency fees
that lawyers can charge; and
LA safe harbor from product liability
litigation for health care providers who prescribe or
dispense products approved by the Food and Drug
Administration.
Over the 2017-2027 period, CBO and the staff of the Joint
Committee on Taxation estimate that enacting the legislation
would reduce direct spending by about $44 billion and increase
Federal revenues by about $6 billion. The combined effect of
those changes would be to reduce Federal deficits by almost $50
billion over that period.
In addition, CBO estimates that implementing the
legislation would reduce discretionary costs for the Federal
Employees Health Benefits (FEHB) program, Department of Defense
(DoD), and Department of Veterans Affairs (VA) by about $1.5
billion over the 2017-2027 period.
Effects on National Spending for Health Care
CBO reviewed recent research on the effects of proposals to
limit costs related to medical malpractice (``tort reform''),
and estimates that enacting the legislation would reduce
national health spending by about 0.4 percent.\1\ That figure
comprises a direct reduction in spending for medical liability
premiums and an additional indirect reduction from slightly
less utilization of health care services. CBO's estimate takes
into account the fact that, because many states have already
implemented some elements of the legislation, a significant
fraction of the potential cost savings has already been
realized. Moreover, the estimate assumes that the spending
reduction of about 0.4 percent would be phased in over a period
of four years, as providers gradually change their practice
patterns.
---------------------------------------------------------------------------
\1\See Congressional Budget Office, letter to the Honorable Orrin
G. Hatch regarding CBO's Analysis of the Effects of Proposals to Limit
Costs Related to Medical Malpractice, (October 9, 2009). http://
www.cbo.gov/ftpdocs/106xx/doc10641/10-09-Tort_Reform.pdf. The estimated
effect on national health spending reported in that letter is different
from the estimated effect for this legislation because the two
proposals would impose different limits on medical malpractice
litigation.
---------------------------------------------------------------------------
Direct Spending
Consistent with CBO's estimate of the bill's effect on
national health spending, we estimate that enacting the
legislation would reduce Federal direct spending by about 0.4
percent for Medicare, Medicaid, FEHB, DoD's TRICARE-for-Life
program, and subsidies for enrollees in health insurance
marketplaces. Those reductions would total roughly $44 billion
over the 2017-2027 period.
Revenues
Much of private-sector health care is paid for through
employment-based insurance, which represents nontaxable
compensation. In addition, since 2014, refundable tax credits
have been available to certain individuals and families to
subsidize health insurance purchased through health insurance
marketplaces. (The portion of those tax credits that exceed
taxpayers' liabilities are classified as outlays, while the
portions that reduce taxpayers' liabilities are recorded as
reductions in revenues.)
Lower costs for health care arising from enactment of the
legislation would lead to an increase in taxable compensation
and a reduction in subsidies for health insurance purchased
through a marketplace. Conversely, the limitation on attorney's
fees would slightly reduce taxable income, causing a loss of
revenues. In the first year, that revenue loss would exceed the
gains from other increases in compensation. The net effect of
those changes would be to increase Federal tax revenues by an
estimated $5.9 billion over the 2017-2027 period, according to
estimates by JCT. Social Security payroll taxes, which are off-
budget, account for $1.9 billion of that increase in revenues.
Spending Subject to Appropriation
CBO estimates that implementing the legislation also would
reduce Federal costs for health insurance for Federal employees
covered through the FEHB program by about 0.4 percent and would
thus reduce costs for health insurance and health care services
paid for by the Departments of Defense and Veterans Affairs. In
CBO's estimation, the cost of health insurance and health care
services funded through appropriation acts would be reduced by
$1.5 billion over the 2017-2027 period, assuming appropriation
actions consistent with the legislation.
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
H.R. 1215 would preempt state laws governing health care
lawsuits in the areas of statutes of limitation, joint and
several liability, product liability, and contingent fees.
Those preemptions would be intergovernmental mandates as
defined by UMRA. Although the preemptions would limit the
application of state laws, they would impose no duty on states
that would result in additional spending or a loss of revenues.
The bill also would require courts (including state courts) to
direct periodic payments of damages in some circumstances. That
intergovernmental mandate would place administrative
responsibilities on court officials, but CBO estimates that the
costs would be insignificant and well below the threshold
established in UMRA ($78 million in 2017, as adjusted for
inflation).
ESTIMATED IMPACT ON THE PRIVATE SECTOR
H.R. 1215 contains private-sector mandates as defined in
UMRA on plaintiffs and their attorneys in medical malpractice
claims. By establishing a cap on noneconomic damages in medical
malpractice claims, the bill would impose a mandate on
plaintiffs as it would limit their ability to recover the
entire amount of compensatory damages that could be collected
under current law. Additionally, by imposing a cap on fees for
attorneys representing plaintiffs in medical malpractice claims
the bill would impose a mandate because it would restrict
amounts that attorneys might otherwise be able to collect from
their clients. The bill also would impose a mandate on
plaintiffs who file medical product liability claims. Such
claims may allege an injury caused by a defective or dangerous
medical product (a drug, device, or biological product). The
bill would eliminate a right to file such claims against health
care providers by exempting those providers from liability if
they prescribe or dispense a medical product that is approved
by the Food and Drug Administration. Eliminating an existing
right of action is a mandate on plaintiffs because their right
to seek redress and recover damages is restricted or lost. The
cost of a mandate that restricts or eliminates an existing
right of action is the value of forgone awards and settlements
in such cases.
CBO estimates the aggregate cost of the mandates in the
bill would exceed the annual threshold established in UMRA for
private-sector mandates ($156 million in 2017, adjusted
annually for inflation) in four of the first five years the
mandates are in effect. On the basis of evidence from studies
on damages in malpractice cases, CBO estimates that the
aggregate cost of the mandates would amount to more than $2.0
billion over the 2018-2022 period.
ESTIMATE PREPARED BY:
Federal Costs: Lara Robillard and Anna Anderson-Cook
Revenues: Staff of the Joint Committee on Taxation
Impact on State, Local, and Tribal Governments: Zachary Byrum
Impact on the Private Sector: Amy Petz
ESTIMATE APPROVED BY:
Holly Harvey
Deputy Assistant Director for Budget Analysis
Duplication of Federal Programs
No provision of H.R. 1215 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 1215 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1215 is designed to lower health care costs and increase access
to health care by placing reasonable limits on health care
lawsuits.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1215 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title; Table of Contents. Section 1 sets
forth the short title of the bill as the Protecting Access to
Care Act and presents a table of contents.
Sec. 2. Encouraging Speedy Resolution of Claims. Section 2
provides for a 3-year statute of limitations with certain
exceptions for minors, fraud, intentional concealment, and the
presence of a foreign body. Preserves state laws that specify
shorter statutes of limitations, a different period for the
filing of lawsuits by a minor, triggers different time periods
based on the date of alleged negligence, or establishes a
statute of repose.
Sec. 3. Compensating Patient Injury. Section 3 provides for
a $250,000 cap on noneconomic damages and a ``fair share''
rule, by which damages are allocated fairly, in direct
proportion to fault. Preserves any state law that provides for
any other monetary amount for damages (whether higher or
lower).
Sec. 4. Maximizing Patient Recovery. Section 4 provides for
sliding scale limits on the contingency fees lawyers can
charge. Preserves state laws that provide for lesser recoveries
by lawyers.
Sec. 5. Authorization of Payments of Future Damages to
Claimants in Health Care Lawsuits. Section 5 provides
authorization for courts to require periodic payments for
future damages exceeding $50,000. Preserves state laws that
specify periodic payments at other amounts, or which mandate
them.
Sec. 6. Product Liability for Health Providers. Section 6
includes a provision protecting pharmacists and doctors from
being named in lawsuits for forum-shopping purposes.
Sec. 7. Definitions. Restricts application of the bill to
liability claims concerning the provision of goods or services
for which coverage was provided in whole or in part via a
Federal program, subsidy or tax benefit.
Sec. 8. Effect on Other Laws. Section 8 provides this Act
does not affect vaccine compensation programs under title XXI
of the Public Health Service Act.
Sec. 9. Rules of Construction. Section 9 makes clear that
state laws governing issues not covered by the bill are
preserved.
Sec. 10. Effective Date. Section 10 provides the effective
date of the Act.
Dissenting Views
H.R. 1215, the ``Protecting Access to Care Act of 2017,''
will do little to protect Americans' access to safe and
affordable health care. Instead, it will undermine the ability
of victims of medical malpractice and defective medical
products to be fully compensated for their injuries. It does
this by imposing onerous restrictions on lawsuits against
health care providers concerning their provision of health care
goods or services, regardless of the merits of a case, the
misconduct at issue, or the severity of the victim's injury. By
imposing these one-size-fits-all Federal standards on
traditionally state court proceedings, H.R. 1215 would also
trample states' rights. The Committee has considered similar
so-called medical malpractice reforms on 11 prior occasions
going back to 1995 and, like the prior iterations of this bill,
H.R. 1215 raises the same core issues of fairness and
federalism with little regard for the consequences.
H.R. 1215 is highly problematic for many reasons. To begin
with, it intrudes deeply on state sovereignty by preempting
several areas of tort law that traditionally have been governed
by the jurisprudence of each individual state or by state
legislatures. Additionally, the bill's scope is broader than
medical malpractice, potentially imposing new restrictions on
claims concerning nursing home negligence and defective
pharmaceuticals or medical devices. Further yet, H.R. 1215
could prevent victims from having their day in court by
providing unjustified immunity for health care providers who
dispense defective or dangerous pharmaceuticals or medical
devices, by instituting an extremely short statute of
limitations period, and by imposing limitations on attorney
contingent fee arrangements that will discourage lawyers from
representing victims. Finally, H.R. 1215 imposes various
requirements that will significantly diminish a victim's
ability to be fully compensated for their injuries, including:
(1) the elimination of joint and several liability with respect
to claims for both economic and noneconomic damages, (2) an
extremely low cap on noneconomic damages such as those for pain
and suffering, which will particularly limit compensation for
members of vulnerable groups like the poor, the elderly,
children, women, and other groups who tend to have less in
terms of lost wages or other economic loss, and (3) the
allowance for periodic payments of future damages of $50,000 or
more, which will put the risk of future loss on plaintiffs
rather than defendants.
In recognition of these significant concerns, a coalition
of 30 consumer and public interest groups, including the Center
for Justice and Democracy, Consumer Federation of America,
National Association of Consumer Advocates, National Women's
Health Network, and Public Citizen, oppose H.R. 1215 because it
``would limit the legal rights of injured patients and families
of those killed by negligent health care'' as well as those
injured by ``unsafe drugs and nursing home abuse and
neglect.''\1\ Similarly, Consumers Union opposes H.R. 1215
because the bill ``would put patient safety at higher risk, by
significantly undermining the accountability of those who
provide patients with medical care.''\2\ In addition, the
American Bar Association, in its opposition to the bill,
observes that for ``200 years, the authority to determine
medical liability law has rested in the states'' and that this
``is a hallmark of the American justice system.''\3\
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\1\Letter from 30 consumer groups to Chairman Bob Goodlatte (R-VA)
and Ranking Member John Conyers, Jr. (D-MI), H. Comm. on the Judiciary
(Feb. 27, 2017) (on file with H. Comm. on the Judiciary Democratic
Staff).
\2\Letter from George P. Slover, Senior Policy Council, Consumers
Union, to Members of the H. Comm. on the Judiciary (Feb. 27, 2017) (on
file with H. Comm. on the Judiciary Democratic Staff).
\3\Letter from Thomas M. Susman, Director of the Governmental
Affairs Office, American Bar Association, to Chairman Bob Goodlatte (R-
VA) and Ranking Member John Conyers, Jr. (D-MI), H. Comm. on the
Judiciary (Feb. 27, 2017) (on file with H. Comm. on the Judiciary
Democratic Staff).
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For these reasons, and for those discussed below, we
respectfully dissent from the Committee's report and oppose
H.R. 1215.
DESCRIPTION AND BACKGROUND
DESCRIPTION
H.R. 1215 would preempt state law generally to the extent
that state laws are more protective than the bill's provisions
of the rights of medical malpractice victims and the victims of
defective medical products. It would replace such victim-
protective laws with new requirements and limitations that
would restrict or undermine the ability of injured persons to
be fully compensated for their injuries or even to have their
claims heard in court. The following describes some of the
bill's most troubling provisions.
Section 10(a) sets forth the general rule that the bill's
provisions preempt state law. It specifies that, except as
otherwise provided in the bill, the legislation's provisions
governing health care lawsuits preempt state law to the extent
that state law prevents the application of any provisions of
law established by or under this legislation. The bill at
various points sets forth exceptions to this general preemption
provision generally for state laws that are more restrictive
for plaintiffs than the bill's provisions would be. Section
10(c) specifies that no provision of this legislation may be
construed to preempt any defense available to a party in a
health care lawsuit under any provision of state or Federal
law.
The bill defines ``health care lawsuit'' to include not
only medical malpractice claims, but also claims concerning
medical products. Specifically, section 8(7) defines ``health
care lawsuit'' to mean ``any health care liability claim
concerning the provision of goods or services for which
coverage was provided in whole or in part via a Federal
program, subsidy or tax benefit, or any health care liability
action concerning the provision of goods or services for which
coverage was provided in whole or in part via a Federal
program, subsidy or tax benefit.'' This definition appears to
cover any claim arising from health care products or services
paid for at least in part by programs such as Medicare,
Medicaid, a subsidy under the Affordable Care Act (ACA),\4\
Veterans Administration-provided health care, or the Employee
Retirement Income Security Act of 1974. Moreover, ``health care
lawsuit'' includes lawsuits brought in state and Federal courts
or pursuant to an alternative dispute resolution (ADR) system
against a health care provider, regardless of the theory of
liability, but does not include criminal liability, civil fines
and penalties, or antitrust claims.
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\4\Pub. L. No. 111-148, 124 Stat. 119 (2010).
---------------------------------------------------------------------------
The bill defines ``health care liability action'' as a
civil action brought in state or Federal court or pursuant to
an ADR system against a health care provider in which the
plaintiff alleges a health care liability claim. ``Health care
liability claim,'' in turn, is defined as ``a demand by any
person, whether or not pursuant to ADR, against a health care
provider . . . which [is] based upon the provision or use of
(or the failure to provide or use) health care services or
medical products.'' The bill defines ``health care provider''
as ``any person or entity required by law to be licensed,
registered, or certified to provide health care services'' and
defines ``health care services'' to mean ``the provision of any
goods or services by a health care provider'' or any individual
working under such person's supervision that relates to the
diagnosis, prevention, or treatment of human disease or
impairment or an assessment or care of human health. This
definition is broad enough that it could include not just
physicians and hospitals, but also nursing homes and long-term
care facilities.
Section 2 creates a statute of limitations for ``health
care lawsuits.'' Claimants must commence a health care lawsuit
within 3 years of the date of injury or within 1 year after the
claimant discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first.
Section 3 caps non-economic damages in ``health care
lawsuits'' at $250,000 regardless of the number of parties
against whom the action is brought or the number of separate
claims or actions brought with respect to the same injury. This
section also eliminates joint and several liability in health
care lawsuits for both economic and noneconomic damages claims.
Joint and several liability means that where there are several
defendants each is liable jointly with the others for the
amount of the judgment against them, and that each is also
individually liable for the full amount. In sum, the plaintiff
can collect from any one of them or any group. By eliminating
joint and several liability for health care lawsuits, each
defendant would be liable only for that defendant's share of
any damages and not for the share of any other person and each
party is liable only for the amount of damages allocated to
such party in direct proportion to such party's percentage of
responsibility. When a judgment of liability is rendered as to
any party, a separate judgment must be rendered against each
such party for the amount allocated to such party.
Section 4 places limitations on the amount of contingent
fees that a plaintiff's lawyer may recover as compensation in a
``health care lawsuit.'' In particular, section 4(a) provides
that the total of all contingent fees for representing all
claimants in a health care lawsuit must not exceed the
following limits: (1) 40 percent of the first $50,000 recovered
by the claimant(s); (2) 33\1/3\ percent of the next $50,000
recovered by the claimant(s); (3) 25 percent of the next
$500,000 recovered by the claimant(s); or (4) 15 percent of any
amount by which the recovery by the claimant(s) is in excess of
$600,000.
Section 6 provides that where a claim for future damages of
$50,000 or more is made against a party with sufficient
insurance or other assets to fund a periodic payment of such a
judgment, the court must, at the request of any party, enter a
judgment order that the future damages be paid by periodic
payments.
Finally, section 7 provides complete immunity for health
care providers who prescribe or dispense pursuant to a
prescription a medical product ``approved, licensed, or cleared
by the Food and Drug Administration'' in a product liability
lawsuit involving such product and provides that health care
providers shall not be liable to a plaintiff in a class action
lawsuit against the manufacturer, distributor, or seller of
such product.
BACKGROUND
Every year, as many as 440,000 Americans die from
preventable medical errors, making it the third leading cause
of death.\5\ Even where death does not result from such errors,
the injuries suffered by patients can be severe and permanent.
In fact, there are 20 times as many serious, yet nonfatal,
preventable injuries to patients. According to the National
Patient Safety Foundation, ``The health care system continues
to operate with a low degree of reliability, meaning that
patients frequently experience harms that could have been
prevented or mitigated.''\6\ Common medical errors include the
40 surgeries per week in the United States performed on the
wrong patient or the wrong body part,\7\ the average of more
than 100 incidents per year of foreign objects being left
inside patients,\8\ and failures to properly diagnose life-
threatening conditions like cancer or to prescribe proper
medication.\9\ In addition to cases of medical errors are
instances where a health care provider intentionally harms a
patient, including cases where a provider rapes or sexually
assaults a patient.
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\5\Marla Paul, How to Prevent 440,000 Yearly Deaths Due to Medical
Errors, Northwestern Now, Nov. 16, 2016, available at https://
news.northwestern.edu/stories/2016/11/how-to-prevent-440000-yearly-
deaths-due-to-medical-errors.
\6\National Patient Safety Foundation. Free from Harm: Accelerating
Patient Safety Improvement Fifteen Years after To Err Is Human.
National Patient Safety Foundation, 2015, available at http://
www.npsf.org/?page=freefromharm.
\7\According to the American Association for Justice, there are 40
wrong-patient or wrong-site procedures performed every week. American
Ass'n for Justice, Medical Negligence: The Role of America's Civil
Justice System in Protecting Patients' Rights (Feb. 2011) (citing Joint
Commission Center for Transforming Healthcare, Wrong Site Surgery
Project http://www.centerfortransforminghealthcare.org/projects/
display.aspx?projectid=4).
\8\The Joint Commission, Sentinel Event Alert, Issue 51, Oct. 17,
2013, available at https://www.jointcommission.org/assets/1/6/
SEA_51_URFOs_10_17_13_FINAL.pdf.
\9\Failure to diagnose a disease and medication errors are the two
most common bases for filing a medical malpractice lawsuit. Rachel
Rettner, Failure to Diagnose Is No. 1 Reason for Suing Doctors, Live
Science, Jul. 18, 2013, available at http://www.livescience.com/38289-
malpractice-claims-missed-diagnoses.html
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A medical malpractice claim is a tort-based legal claim for
damages arising out of an injury caused by a health care
provider. Tort claims are part of ``common law'' or judge-made
law of the U.S. civil justice system and typically reserved to
the states.\10\
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\10\``Tort law at present is almost exclusively state law rather
than federal law [.]'' Federal Tort Reform Legislation:
Constitutionality and Summaries of Selected Statutes, Congressional
Research Service, Rep. No. 95-797A, at 1.
---------------------------------------------------------------------------
Product liability actions are actions brought against the
manufacturer or seller of a defective or dangerous product by a
consumer who is injured as a result of that product. Like other
areas of tort law, products liability is governed by state laws
on negligence, breach of warranty, or strict liability.
The tort system provides various benefits to society.
First, it compensates victims who have been injured by the
negligent conduct of others. Second, it deters future
misconduct and carelessness that may cause injury and punishes
wrongdoers who inflict such injury. Third, it prevents future
injury by removing dangerous products and practices from the
marketplace. Fourth, it informs an otherwise unknowing public
of such harmful products or practices thereby expanding public
health and safety.\11\
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\11\Joan Claybrook, Consumers and Tort Law, 34 Fed. B. News & J.
127 (1987).
---------------------------------------------------------------------------
Most medical malpractice claims are based on the tort of
``negligence,'' defined as conduct ``which falls below the
standard established by law for the protection of others
against unreasonable risk and harm.''\12\ In medical
malpractice cases, this legal standard is based on the
practices of the medical profession,\13\ and is usually
determined based on testimony of expert witnesses. As with
other torts, remedies for medical malpractice may consist of:
(1) compensatory damage awards for economic losses such as
medical expenses, lost wages, pain and suffering, reduced life
expectancy and diminished quality of life; and (2) punitive
damages to punish and deter willful and wanton conduct.
---------------------------------------------------------------------------
\12\Restatement (Second) of Torts Sec. 282 (1965).
\13\David M. Harney, Medical Malpractice Sec. 21.2, at 413 (2d ed.
1987).
---------------------------------------------------------------------------
Medical malpractice liability insurance has historically
attracted the attention of Congress during industry ``crisis''
periods, which occurred during the mid-1970's, the mid-1980's,
and the early 2000's. These periods were all marked by
increases in insurance premiums, difficulties in finding
malpractice insurance for certain medical specialties, and
reports of physicians leaving geographical areas or retiring to
avoid insurance difficulties. Currently, the medical liability
insurance market is not exhibiting crisis symptoms. Indeed,
according to a 2016 article in a medical malpractice insurance
industry trade publication, the ``medical professional
liability insurance industry is continuing its unprecedented
run of consecutive profitable years in 2016. Never before has
the industry witnessed such an unbroken string of annual
favorable results, many of which were very favorable.''\14\
That same publication, describing a survey of medical
professional liability insurance rates, noted that for the
``vast majority (75 percent) of [medical malpractice] insurers
in the survey, rates have remained flat between 2015 and
2016.''\15\
---------------------------------------------------------------------------
\14\Paul Greve & Allison Milford, Do Still Waters Still Run Deep?
Medical Professional Liability in 2016, Medical Liability Monitor, Vol.
41, No. 10 (Oct. 2016).
\15\Id. at 5.
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CONCERNS WITH H.R. 1215
I. H.R. 1215 VIOLATES STATE SOVEREIGNTY.
H.R. 1215, like many so-called ``tort reform'' measures
that the Committee has considered, represents a deep intrusion
into state sovereignty. Although tort law is an area
historically developed and shaped by the states, H.R. 1215
raises broad federalism concerns as it preempts several areas
of tort law that traditionally have been governed by the
jurisprudence of each individual state or by state
legislatures. The bill mandates that, with certain very limited
and defendant-friendly exceptions, each of the bill's
provisions ``governing health care lawsuits set forth in this
Act preempt . . . State law to the extent that State law
prevents the application of any provisions of law established
by or under this Act.''\16\ In particular, H.R. 1215 preempts
state law governing joint and several liability, the
availability of damages, attorneys' fees, and periodic payments
of future damages. In short, H.R. 1215 does nothing to address
the fundamental concerns about states' rights raised by our
Republican Committee colleagues as it intrudes just as deeply
as its predecessor bills into areas traditionally determined by
the states.
---------------------------------------------------------------------------
\16\H.R. 1215, 115th Cong. Sec. 10(a) (2017) (as amended).
---------------------------------------------------------------------------
As with previous versions of this legislation, many
provisions of H.R. 1215 are written to be ``one-way
preemptive''--that is, they only supersede state laws that are
generally more favorable to victims, rather than preempting
state law equally across the board. For instance, the bill does
not preempt any defenses available to defendants under state
law. In addition, H.R. 1215 leaves intact damage caps
determined by states even if they exceed those in the bill, but
would impose them on states lacking such damage caps.
Similarly, the bill leaves in place state limitations periods
that are shorter than those provided for in the bill, but not
those that may be longer; state laws that provide for lower
contingent fee payments to plaintiffs' attorneys, but not those
that may authorize higher payments; and state laws that specify
periodic payments for future damages at any amount other than
$50,000, but not those state laws that prohibit periodic
payments. This is true even though the absence of the
defendant-protective features provided in H.R. 1215 represent a
state judiciary's established legal precedents or the valid
public policy choices made by a state's legislature.
Examples of state provisions that H.R. 1215 would preempt
include state constitutional provisions in Arizona, Arkansas,
Kentucky, Pennsylvania, and Wyoming that prohibit caps on
damages.\17\ In addition, 22 states' laws provide for some form
of joint and several liability, which would be preempted by
this bill.\18\ By applying a numerically specific sliding scale
on contingent fee arrangements, the bill also preempts the law
in 33 states and the District of Columbia that either do not
have any specific statutory limits on attorneys' fees, require
or allow a court to determine a ``reasonable'' fee award, leave
attorney compensation arrangements entirely to the parties to
determine, or impose a sliding scale with higher compensation
limits than the bill provides.\19\
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\17\The relevant state constitutional provisions are Arizona
(Article 2 sec. 31 and Article 18 sec. 6); Arkansas (Article 5,
Sec. 32); Kentucky (Section 54); Pennsylvania (Article III sec. 18);
and Wyoming (Section 97-10-004 (a)).
\18\Alabama, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland,
Massachusetts, Minnesota, Missouri, Montana, Nebraska, New Hampshire,
New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island,
South Carolina, South Dakota, and Virginia.
\19\Alabama, Alaska, Arizona, Arkansas, Colorado, District of
Columbia, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana,
Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota,
Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South
Dakota, Texas, Vermont, Virginia, Washington, and West Virginia.
---------------------------------------------------------------------------
In light of the fact that H.R. 1215 fundamentally upends
our Nation's Federal constitutional structure, Representative
Hank Johnson (D-GA) offered an amendment that would have added
a rule of construction requiring that the bill not be construed
to preempt any state constitutional provision. In support of
his amendment, Representative Johnson noted that ``the bill
only overrides those [state] laws which are more protective of
injured patients and families so that defendants . . . can gain
an unfair advantage in courts''\20\ and that such ``sweeping
preemption of state law . . . comes at the expense of
individuals hurt by medical malpractice or dangerous products,
as well as families suffering under the weight of crippling
medical bills and lost wages caused by medical
negligence.''\21\ The Committee initially adopted this
amendment by a bipartisan 16 to 15 vote.\22\ In response to the
adoption of this amendment, however, the Committee Majority
proceeded to engage in a number of extraordinary procedural
maneuvers to reconsider the amendment,\23\ cut off debate,\24\
and hold a second vote on whether to adopt this amendment.\25\
On the second vote, the Committee rejected the amendment by a
tie vote of 17 to 17, notwithstanding continued bipartisan
support in favor of adopting the amendment.\26\
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\20\Unofficial Tr. for Markup of H.R. 1215, the ``Protecting Access
to Care Act of 2017,'' by the H. Comm. on the Judiciary, 115th Cong.
105 (Feb. 28, 2017) [hereinafter ``Markup Tr.''], available at https://
judiciary.house.gov/wp-content/uploads/2017/02/2.28-Markup-
Transcript.pdf.
\21\Id.
\22\Id. at 119.
\23\Id. at 132-36, 148.
\24\Id. at 136, 142, 153, 158.
\25\Id. at 158.
\26\Id. at 164.
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II. H.R. 1215 APPLIES WELL BEYOND MEDICAL MALPRACTICE.
H.R. 1215 makes sweeping changes to the ground rules for
``any health care lawsuit brought in a Federal or State court,
or subject to an alternative dispute resolution system, that is
initiated on or after the enactment of this Act. . . .''\27\
The bill, in turn, defines a ``health care lawsuit'' as:
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\27\H.R. 1215, 115th Cong. Sec. 11 (2017) (as amended).
any health care liability claim concerning the
provision of health care goods or services for which
coverage was provided in whole or in part via a Federal
program, subsidy or tax benefit, or any health care
liability action concerning the provision of goods or
services for which coverage was provided in whole or in
part via a Federal program, subsidy or tax benefit,
brought in a State or Federal court or pursuant to an
alternative dispute resolution system, against a health
care provider regardless of the theory of liability on
which the claim is based. . . .\28\
---------------------------------------------------------------------------
\28\Id., Sec. 8(7).
Importantly, H.R. 1215 defines ``health care provider'' to
include a person or entity licensed or certified to provide
health care services, which could include hospitals, surgery
centers, nursing homes, assisted living facilities,
rehabilitation facilities, and insurance companies. Although it
is often described as a ``medical malpractice'' measure, H.R.
1215 is not limited to medical malpractice lawsuits because its
health care lawsuit definition covers all ``health care
liability claims,'' including claims based on the provision of
medical products by a health care provider, and to ``any theory
of liability on which the claim is based,'' including those
based on actions taken by drug and medical device
manufacturers, nursing homes, insurance companies, and health
maintenance organizations.
Finally, although H.R. 1215's proponents may assert the
bill is narrower than its predecessors, it is, in fact, almost
as broad. The definition of ``health care lawsuit'' attempts to
limit the bill's scope to claims arising from Federal
Government-subsidized health insurance programs, such as
Medicare, Medicaid, the ACA, and veterans health plans. If
anything, the addition of this language to the definition of
``health care lawsuit'' means that the bill's onerous
provisions would be particularly targeted at claims by the
elderly, the poor, veterans, and other vulnerable groups, who
disproportionately depend on government-subsidized health
insurance.
Given the bill's broad scope, including its potential
application to claims for abuse or negligence against nursing
homes and long-term care facilities, Representative Hank
Johnson (D-GA) offered an amendment that would have exempted
from H.R. 1215's unjustified and burdensome provisions all
claims concerning nursing homes and long-term care facilities.
The Committee, however, rejected this amendment by a party-line
vote of 13 to 15.\29\
---------------------------------------------------------------------------
\29\Markup Tr. at 101.
---------------------------------------------------------------------------
III. H.R. 1215 RESTRICTS HEALTH CARE LAWSUITS THAT WILL DIMINISH OR
COMPLETELY BLOCK VICTIMS' ABILITY TO BE COMPENSATED FOR THEIR INJURIES.
A. LH.R. 1215 Provides Unjustifiable Immunity for Health Care Providers
Who Dispense Defective or Dangerous Pharmaceuticals or Medical
Devices.
H.R. 1215 threatens to undermine the ability of victims of
defective or dangerous medical products, including prescription
pharmaceuticals and medical devices, to be made whole. The bill
adds a new provision, not contained in previous iterations of
this measure, that gives a complete liability shield for health
care providers who provide defective or dangerous products to a
plaintiff if such product was ``approved, licensed, or cleared
by the Food and Drug Administration.''\30\ Specifically, this
provision prohibits any health care provider from even being
named in any lawsuit concerning the prescribing or dispensing
of a drug or medical device under such circumstances. Moreover,
a health care provider cannot be held liable in any product
liability class action against a manufacturer of such defective
or dangerous drug or medical device.
---------------------------------------------------------------------------
\30\H.R. 1215, 115th Cong. Sec. 7 (2017) (as amended).
---------------------------------------------------------------------------
This provision could prevent victims from receiving just
compensation for injuries in many cases. For example, where the
health care provider is also the manufacturer of the defective
or dangerous product, such as in the case of certain
pharmacists, the victim may be left without someone to sue for
his or her injury. Similarly, where a manufacturer successfully
shifts blame onto the provider for negligent dispensing or use
of a drug or device, a victim may lose any access to
restitution since she cannot sue the provider. This excessively
broad liability shield for health care providers--which,
effectively, could also provide legal protection for drug and
device manufacturers--is both unjust and unjustifiable.
B. LH.R. 1215 Imposes an Excessively Short Statute of Limitations
Period.
H.R. 1215 imposes an extremely restrictive statute of
limitations for medical malpractice actions that significantly
reduces the time that an injured person has to file a lawsuit.
It provides that ``the time for the commencement of a health
care lawsuit shall be no later than 3 years after the date of
injury or 1 year after the claimant discovers, or through the
use of reasonable diligence should have discovered, the injury,
whichever occurs first.''\31\ The effect of this language is
that a victim has, at most, 3 years, and as little as 1 year,
to file suit.
---------------------------------------------------------------------------
\31\Id., Sec. 2 (emphasis added).
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Although disguised as a 3-year statute of limitations, the
effect of this provision is that the claimant often has exactly
1 year from the date of discovering the injury to file suit. A
claimant will, quite often, ``discover'' an injury on the same
day or shortly after an injury occurs. This provision also cuts
in the opposite direction, hindering patients who are injured
by diseases with long latency periods. For example, a patient
who was infected with HIV through a negligent blood transfusion
may not discover his injury until more than 3 years after the
date of the injury because the symptoms of his injury may
manifest more than 3 years after the negligent transfusion. To
the extent that the bill's statute of limitations period is
shorter than those currently available under state law, it
works to deny victims their day in court.
C. LH.R. 1215 Makes It Harder for Victims To Obtain Adequate Legal
Representation.
H.R. 1215 severely limits the amount an attorney may
receive in the form of contingency fee payments. Contingency
fee arrangements--where attorneys forgo immediate payment in
exchange for a share of the damages if a plaintiff prevails in
court--serve a useful and essential function in the legal
system.\32\ Because contingency fee agreements require little
or no money up front, injured plaintiffs who could not
otherwise afford legal representation have access to counsel.
In short, competent legal representation comes at a cost and
H.R. 1215 would undermine the ability of plaintiffs to obtain
such legal representation. Moreover, because attorneys who take
losing cases are paid little or nothing for their efforts,
contingency fees also serve as a screening mechanism for
``frivolous'' cases.\33\
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\32\See Herbert M. Kritzer, Lawyer Fees and Lawyer Behavior in
Litigation: What does the Empirical Literature Really Say?, 80 TEX. L.
REV. 1943 (2002); Herbert M. Kritzer, Economic Policy Litigation
Conference Seven Dogged Myths Concerning Contingency Fees, 80 WASH. U.
L.Q. 739 (Fall 2002).
\33\Id.
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H.R. 1215 would sharply erode the incentives provided by
contingency fee arrangements and threaten the ability of
injured plaintiffs to obtain legal representation by capping
the total amount of all contingent fees for representing all
claimants in a health care lawsuit to: (1) 40 percent of the
first $50,000 recovered by the claimant(s), (2) 33\1/3\ percent
of the next $50,000 recovered by the claimant(s), (3) 25
percent of the next $500,000 recovered by the claimant(s), and
(4) 15 percent of any amount by which the recovery by the
claimant(s) is in excess of $600,000. The bill also authorizes
the courts to approve fees lower than those provided for by
this formula in cases involving a minor or incompetent person.
This provision is clearly intended to dis-incentivize lawyers
from taking health care cases and thereby make it harder for
plaintiffs to have their day in court.
D. LBy Eliminating Joint and Several Liability for Economic and
Noneconomic Damages, H.R. 1215 Makes It Very Difficult for
Victims in Health Care Lawsuits To Be Made Whole.
H.R. 1215 eliminates joint and several liability for
economic and noneconomic loss. Joint liability ensures that
injured patients are fully compensated for their losses by
allowing one lawsuit to be brought against multiple defendants
and having the defendants apportion fault among them. The
doctrine is designed to ensure that victims of wrongful conduct
are able to recover the full amount of damages for their
injuries, especially when one or more of the defendants is
insolvent. Many states recognize joint and several liability
based on the principle that it is the injured patient, rather
than the multiple negligent providers, who rightly should be
given the greatest measure of protection under the law. By
eliminating joint and several liability, H.R. 1215 threatens
the ability of plaintiffs to be made whole.
Given the harm to victims that would result from
eliminating joint and several liability, Representative Jamie
Raskin (D-MD) offered an amendment to strike this provision
from the bill. The Committee, however, rejected this amendment
by a party-line vote of 14 to 16.\34\
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\34\Markup Tr. at 199.
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E. LH.R. 1215 Unjustifiably Caps Noneconomic Damages, Which Will Have a
Disproportionately Adverse Impact on Women, the Poor, and Other
Vulnerable Groups.
H.R. 1215 caps noneconomic damages at an aggregate amount
of $250,000, regardless of the total number of defendants or
claims brought with respect to the same injury. Noneconomic
damages, such as those for pain and suffering and loss of
consortium, compensate victims for real injuries such as the
loss of sight, loss of a limb, severe disfigurement, and loss
of fertility. As a result of such an extremely restrictive cap
on noneconomic damages, many victims injured as a result of
medical malpractice of defective medical products will be
denied full compensation. Women, children, the poor, the
elderly, and the disabled will be particularly hurt by H.R.
1215's cap on noneconomic damages because they may have less
substantial amounts of lost wages or other kinds of economic
loss that must be documented for an award of economic damages.
Representative Jerrold Nadler (D-NY) explained that he
would have offered two amendments to increase this $250,000
cap, a level that he noted was set more than 40 years ago in a
California statute. One amendment would have indexed the
$250,000 cap to inflation and the other would have increased
the cap to reflect the present value of $250,000 in 1975
dollars and then indexed that amount to inflation.\35\ In the
interest of time, however, he did not offer these amendments.
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\35\Id. at 63-64.
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F. LH.R. 1215 Inequitably Imposes the Risk of Loss on Victims Rather
than Wrongdoers.
H.R. 1215 provides that, upon request of a party, payments
of future damages--i.e., damages accrued after judgment,
settlement, or resolution of the case--in excess of $50,000 may
be made in periodic payments rather than a lump sum payment to
victims. Periodic payment plans allow a negligent party to
stall while the patient assumes the risk of loss. The defendant
(or the defendant's insurance company) can, in the meantime,
invest and earn interest on the compensation owed to the
patient. If a defendant files for bankruptcy--or simply refuses
to pay--it is the patient's responsibility to retain counsel
and press the matter in court. This would be an unjust outcome.
IV. H.R. 1215 PROVIDES NO EXCEPTIONS TO ITS ONEROUS PROVISIONS FOR
THOSE WHO HAVE SUFFERED EVEN THE MOST HORRIFIC INJURIES OR ARE THE
VICTIMS OF THE WORST KINDS OF MISCONDUCT.
H.R. 1215's onerous requirements apply even in cases where
a health care provider has intentionally harmed a patient or
when the medical error is especially egregious. For instance,
the bill's extremely low cap on noneconomic damages would
likely prevent full compensation for a child who has been
sexually molested by a health care provider, a woman who had a
healthy breast removed after a misdiagnosis of breast cancer,
or a low-income person who had the wrong leg amputated by a
surgeon. The bill's other provisions would likewise make it far
less likely that victims of such egregious medical misconduct
will be fully compensated for their injuries or even have their
day in court.
For the foregoing reasons, Ranking Member John Conyers, Jr.
(D-MI) offered an amendment that would have exempted from H.R.
1215 all health care claims arising from an intentional tort.
At a minimum, the bill's onerous provisions should not apply
with respect to the most egregious kinds of conduct, such as
rape, sexual assault, or other intentional harm caused by a
health care provider. This amendment would have avoided the
bill's many obstacles to justice for victims at least in cases
where the underlying conduct was most serious and grave.
Unfortunately, the Committee rejected this amendment by a
party-line vote of 12 to 16.\36\
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\36\Id. at 63.
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Representative Sheila Jackson Lee (D-TX) offered an
amendment that would have exempted from H.R. 1215 all cases
concerning irreversible injury. At a minimum, victims of
medical malpractice or defective medical products who suffer
severe and permanent injury should be able to seek justice in
court without the unnecessary and unjustified burdens imposed
by this bill. Notwithstanding this concern, the Committee
rejected this amendment by a party-line vote of 14 to 19.\37\
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\37\Id. at 132.
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Similarly, Constitution and Civil Justice Subcommittee
Ranking Member Steve Cohen (D-TN) offered an amendment to
exempt from H.R. 1215 all cases arising from a claim of wrong-
site, wrong-patient surgery or where a device had been left
inside of a patient. As with the intentional tort exemption,
this narrow amendment would have provided relief from the
bill's onerous and unfair provisions for victims of
particularly egregious medical errors, such as cases where the
wrong body part had been amputated or where the wrong patient
was operated on through the negligence of a health care
provider. Notwithstanding these concerns, the Committee
rejected this amendment by a party-line vote of 12 to 16.\38\
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\38\Id. at 87.
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Finally, Representative Eric Swalwell (D-CA) offered an
amendment to exempt from H.R. 1215 all cases concerning the
provision of goods or services for treatment of an injury
sustained by a rape or sexual assault victim as a result of
such rape or sexual assault. This amendment would have
protected victims of such horrific crimes from being further
victimized by the bill's many hurdles to compensation for
medical injuries. The Committee, however, rejected this
amendment by a party-line vote of 13 to 17.\39\
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\39\Id. at 183.
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CONCLUSION
While House Republicans appear to proffer H.R. 1215 as part
of their effort to ``repeal and replace'' the ACA and that
law's guarantee of adequate and affordable health insurance
coverage for all Americans, the bill actually undermines those
goals by heightening the risks of harm to patients and
consumers of medical products. It does this by significantly
undermining their ability to pursue a case in court and by
imposing various restrictions on victims' ability to be fully
compensated for their injuries, making it harder to hold
wrongdoers accountable and to deter future misconduct.
Additionally, the bill represents a deep intrusion into state
sovereignty as state legislatures and state courts
traditionally set the rules governing tort liability. For these
reasons, and those articulated above, we strongly oppose H.R.
1215.
Mr. Conyers, Jr.
Mr. Nadler.
Ms. Lofgren.
Ms. Jackson Lee.
Mr. Cohen.
Mr. Johnson, Jr.
Mr. Deutch.
Mr. Gutierrez.
Ms. Bass.
Mr. Richmond.
Mr. Jeffries.
Mr. Cicilline.
Mr. Swalwell.
Mr. Lieu.
Mr. Raskin.
Ms. Jayapal.
[all]