On March 22, 2012, the U.S. House of Representatives passed H.R. 5 that is entitled “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2012” by a vote of 223 to 181, with 7 Democrats voting yes, 10 Republicans voting no, and 4 Republicans voting present. The AMA-supported H.R. 5 now moves to the U.S. Senate, where its future in its current form is uncertain.
Medical malpractice victim advocates are concerned about the HEALTH Act’s medical liability provisions, including an onerous cap (limit) on noneconomic damages in the amount of $250,000.
What Are Some Of The Provisions Of H.R. 5 That May Affect Medical Malpractice Victims?
H.R. 5 states that it is intended “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.”
H.R. 5 places national time limits on when medical malpractice claims can be made: “The time for the commencement of a health care lawsuit shall be 3 years after the date of manifestation of injury or 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”
H.R. 5 places a national arbitrary limit on allowable noneconomic damages: “In any health care lawsuit, the amount of noneconomic damages, if available, may be as much as $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….future noneconomic damages shall not be discounted to present value. The jury shall not be informed about the maximum award for noneconomic damages.”
H.R. 5 would eliminate “joint and several liability” : “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.” (With “joint liability,” each liable party is responsible for the full amount of the liability as long as the party was partially at fault; with “several liability,” each liable party is responsible for only his proportionate share of the total liability (that is, the damages caused by his wrongdoing only); with “joint and several liability,” the claimant may recover all of his damages from any of the liable defendants regardless of each defendant’s share of the responsibility for the damages — the burden is placed on the defendants to establish among themselves their proportionate share of the total liability).
H.R. 5 places limits on the amount of contingency fees that medical malpractice lawyers may receive if the medical malpractice claims result in recoveries: “Forty percent of the first $50,000 recovered by the claimant(s). Thirty-three and one-third percent of the next $50,000 recovered by the claimant(s). Twenty-five percent of the next $500,000 recovered by the claimant(s). Fifteen percent of any amount by which the recovery by the claimant(s) is in excess of $600,000.”
Furthermore, H.R. 5 provides with respect to contingency fees: “…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.”
How Would Some Of The Restrictions Of H.R. 5 Affect Potential Medical Malpractice Claimants?
First and foremost, seriously and permanently injured medical malpractice victims would not be able to receive full, fair, and adequate compensation for their losses and damages resulting from medical malpractice because the maximum amount that they could possibly receive for their excruciating and constant pain and suffering, disfigurement, mental anguish, etc. would be in the arbitrary amount of $250,000. In short, H.R. 5 would reward and insulate the medical malpractice defendants who have been found to have provided medical care that failed to meet the required standard of care and that caused outrageous injuries to their patients, while at the same time denigrating the suffering and catastrophic injuries suffered by the innocent victims of their medical negligence.
A less obvious result of H.R. 5 may be that medical malpractice victims deserving of receiving compensation for their injuries from their medical malpractice wrongdoers may have greater difficulty or may be precluded altogether from finding a medical malpractice attorney who would be willing to take their case because medical malpractice lawyers may be willing to accept only the most substantial medical malpractice cases that present the greatest likelihood of a substantial recovery because their contingency fee (the manner in which most medical malpractice lawyers are compensated — they earn a fee only if there is a recovery) would be substantially reduced by H.R. 5 from what is customarily and presently charged by medical malpractice attorneys.
Furthermore, despite the agreement (contract) signed by the medical malpractice victim and his medical malpractice attorney at the beginning of the representation regarding the agreed-upon amount that the medical malpractice attorney will receive if the case is successful, a judge may nonetheless reduce the long-ago agreed-upon contingency fee after the successful medical malpractice case results in a medical malpractice recovery. Therefore, medical malpractice lawyers may reject valid and just medical malpractice cases if the facts of the case pose a substantial risk of having their agreed-upon contingent fee reduced by a judge after the lawyer has exhaustively and successfully worked to obtain compensation for his medical malpractice client.
Think of it this way: what would be your incentive to work for a prospective employer if your employer had the right to reduce the amount he agreed to pay you after you had already completed the work you agreed to do?
We at MedicalMalpracticeLawyers.com often get calls from medical malpractice victims who are outraged to learn that despite their terrible and life-changing injuries suffered as a result of clear medical malpractice negligence, their respective states have substantially limited the amount that they can recover for their pain and suffering, mental anguish, and other noneconomic damages suffered solely as a result of their medical provider’s carelessness.
We feel their pain in finding out that their elected state representatives who were supposed to protect them and look out for their interests have sold out to the special interest groups of medical professionals and their lobbyists who now enjoy the unnecessary and unjust benefits of limits on noneconomic damages at the dire expense of the rest of us.
When will we rise up and react to our elected representatives (on the state level in the past and at the present, and on the federal level presently) dealing away our rights and threatening our future and the future of our families by providing special rights and privileges to those who promised to provide competent medical care but instead were careless or incompetent leading to needless injuries?
Perhaps one of the reasons for the inaction of our citizens in standing up to protect their long-established rights to be compensated for their injuries and losses due to the negligence of others is that most people think that they (and their family members) will not become medical malpractice victims in their lifetime and therefore the caps on noneconomic damages will never affect them. To those individuals we remind them of the prophetic warning of our American forefather, Benjamin Franklin, when addressing our essential rights: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
You can help to protect the rights of innocent victims of medical negligence: make your voice heard by contacting your state and federal elected representatives to tell them to treat everyone fairly and equally by not providing medical providers with special protections and rights that hurt victims of medical malpractice.
If you or a family member have been injured or suffered losses as a result of medical malpractice, click here to visit our website or telephone us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may be able to assist you with your medical malpractice claim.
Turn to us when you don’t know where to turn.