H.R. 5: A Cruel Proposal in Congress

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http://www.centerjd.org/HR5.doc.pdf

 

H.R. 5:

 

A Cruel Proposal in Congress

 

That Will Hurt Patients

 

H.R. 5 is a cruel law that reduces the protections and rights our country

provides to those who

 

are injured by medical malpractice. Adding to the already existing barriers to

court for injured

 

patients, H.R. 5 presents a peril to family safety and overturns numerous state

laws. Here’s why:

 

Cap on Non-Economic Damages: H.R. 5 would impose an arbitrary ceiling --

$250,000 as now

 

proposed in the bill -- on the amount a patient injured by medical malpractice

can receive

 

for non-economic damages, no matter how devastating the injury. Non-economic

 

damages compensate for intangible but real injuries like infertility, permanent

disability,

 

disfigurement, blindness, pain and suffering, loss of a limb or other physical

impairment.

 

In other words, caps on non-economic damages hurt those who are suffering the

most.

 

Such caps also have a disproportionate effect on women who work inside the home,

 

children, seniors or the poor and other low wage-earners who are more likely to

receive a

 

greater percentage of their compensation in the form of non-economic damages if

they

 

are injured.

 

Repeals the Collateral Source Rule: The collateral source rule prevents a

wrongdoer from

 

reducing its financial responsibility for the injuries it causes by the amount

an injured

 

party receives (or could later receive) from outside sources. Payments from

outside

 

sources are those unrelated to the wrongdoer, like health or disability

insurance, for

 

which the injured party has already paid premiums or taxes. H.R. 5 says that

payments

 

received from health insurance, social security or other sources can be used to

reduce the

 

wrongdoer’s liability.

 

Structured Settlements: H.R. 5 allows a defendant to request that future damages

awarded by a

 

judge or jury be made to the injured patient over his or her lifetime. In other

words, the

 

injured consumer is prohibited from receiving payments in a lump sum. This

provision

 

would increase the hardships of the most seriously injured consumers who are hit

soon

 

after an injury with large medical costs and must make adjustments in

transportation and

 

housing.

 

2

 

Contingency Fee Limits : H.R. 5 limits contingency fees by capping them along a

sliding scale

 

so fee percentages decrease as judgments increases. The principal impact is to

make it

 

less likely attorneys can afford to risk bringing many medical malpractice

cases,

 

particularly the more costly and complex ones, providing practical immunity for

many

 

hospitals and physicians, even repeat offenders.

 

Abolishes Joint and Several Liability: This bill would completely eliminate

joint and several

 

liability for both economic and non-economic damages. Joint and several

liability is a

 

centuries-old doctrine that protects injured consumers if more than one

wrongdoer is fully

 

responsible for causing an indivisible injury (i.e., " but for " their misconduct,

the victim

 

would not have been injured), but one is insolvent or can not pay. For example,

this rule

 

is critical in assault cases, such as when a senior is raped in a nursing home.

It allows the

 

victim to obtain full damages against a negligent nursing home if the assailant

is indigent.

 

But under this bill, a fully responsible nursing home would be off the hook for

paying a

 

significant part of the damages in the event a senior is assaulted.

 

Severe Limits on Punitive Damages: H.R. 5 provides that punitive damages may

only be

 

awarded if the plaintiff proves them by an impossibly high standard, and limits

punitive

 

damages to two times the amount of economic damages or $250,000, whichever is

 

greater. Moreover, the bill completely immunizes manufacturers of drugs and

devices

 

that are approved by the FDA from punitive damages and extends immunity to other

 

manufacturers as well. Punitive damages are assessed against defendants by

judges or

 

juries to punish particularly outrageous, deliberate or harmful misconduct, and

to deter

 

the defendant and others from engaging in similar misconduct in the future.

Capping or

 

limiting punitive damages will allow hospitals to treat liability as a cost of

doing

 

business, weakening their deterrent impact.

 

Reduced Statute of Limitations: The legislation reduces the amount of time an

injured patient

 

has to file a lawsuit to one year from the date an injury is discovered or

should have been

 

discovered, but not later than three years after the date of injury. This

statute of

 

limitations, which is much more restrictive than a majority of state laws, would

cut off

 

many meritorious claims, especially those involving diseases with long

incubation

 

periods. Thus, a person who contracted HIV through a negligent transfusion but

learned

 

of the disease more than five years after the transfusion would be barred from

filing a

 

claim.

 

Massive interference with states’ rights: H.R. 5 would dictate, for the first

time in U.S.

 

history, broad medical negligence and liability standards to the courts in all

50 states. It

 

would interfere with judgments made by state officials and judges as to what

tort

 

remedies should be available, as well as the amount local judges and juries can

award.

 

As the Conference of Chief Justices (state court chief justices) put it in April

1995

 

testimony, " The critical experience of State courts with the long process of

interpretation

 

and consistency on major points of … liability law tells us that Federal

legislation is not

 

the answer. Re-inventing tort law must occur by and through State courts and

 

legislatures that are best situated to determine and control the impact of

reform within

 

their own communities. "

 

 

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