House Committees Move
Medical Liability Reform and Voluntary Reporting
of Medical Errors
S. Diane Turpin, J.D.
Associate Director of Governmental Affairs
Committees within the House of Representatives have
moved expeditiously to report legislation to the
full House to reform medical liability laws and
to establish the voluntary reporting of medical
errors.
The House Energy and Commerce Committee and the
Judiciary Committee approved H.R. 5, the medical
liability reform bill introduced by Representative
James C. Greenwood (R-PA). The bill will be considered
by the full House during the week of March 10. H.R.
5, the Help Efficient, Accessible, Low-cost, Timely
Healthcare (HEALTH) Act of 2003, is closely patterned
after the legislation that passed the House of Representatives
last year, which was based upon the California Medical
Injury Compensation Reform Act.
HEALTH would ensure that injured patients be entitled
to an unlimited amount of economic damages, the
objectively verifiable monetary losses such as past
and future medical expenses and earnings, among
others.
Perhaps the most widely known and, in some respects,
the most controversial provision of the bill is
the $250,000 cap on noneconomic damages —
the damages that may be awarded for physical and
emotional pain and suffering, inconvenience and
other nonpecuniary losses.
The legislation allows for punitive damages but
would limit the damages to twice the amount of the
economic damages or $250,000, whichever is greater.
Punitive damages would not be awarded where the
claimant was not awarded compensatory (economic
or noneconomic) damages. To seek punitive damages,
a claimant would have to prove by clear and convincing
evidence that the defendant acted with malicious
intent to injure the claimant or that the defendant
deliberately failed to avoid unnecessary injury
that the defendant knew the claimant was substantially
certain to suffer. For a punitive damages claim
to proceed, the court would have to find that the
claimant established by a substantial probability
that he or she would prevail.
Other provisions include a “fair share”
rule to allocate damage awards fairly and in proportion
to a party’s degree of fault, the introduction
of evidence of collateral source benefits and a
sliding scale for attorneys’ contingent fees
to ensure maximum recovery for the claimant.
Lawsuits would have to be filed within three years
after the date of manifestation of injury or one
year after the claimant discovers or should have
discovered the injury, whichever occurs first, with
certain exceptions for fraud or intentional concealment.
Certain exceptions also apply with respect to minors
under the age of six.
During the Energy and Commerce Health Subcommittee
mark-up of the legislation, the subcommittee rejected
an amendment that would have increased the amount
of time a claimant would have to file a claim and
an amendment to exempt health maintenance organizations
and drug and medical device manufacturers from the
caps in the bill. An amendment offered by the chair
of the subcommittee, Representative Michael Bilirakis
(R-FL), and ultimately accepted by the full committee,
clarifies that noneconomic damages would be paid
on a per-injury basis, not per-occurrence, in the
event that multiple parties were injured in the
same incident. The amendment also limits the scope
of lawsuits covered under the legislation, barring
claims based on criminal liability or antitrust.
H.R. 5 is expected to easily pass the Republican-controlled
House of Representatives as it did last year. Similar
bills, expected to be introduced in the Senate,
have yet to surface. While the now Republican-
controlled Senate is more likely than last session’s
Democratic-controlled Senate to advance reform legislation,
the battle in the Senate will be fierce. The most
significant challenge will be obtaining the 60 votes
required in the narrowly divided Senate to close
off debate and allow a vote on the bill.
Ways and Means, Commerce Report
Medical Errors Bills
By unanimous votes, the House Ways and Means Committee
and Energy and Commerce Committee reported out similar
bills (H.R. 877 and H.R. 663) designed to encourage
the voluntary, confidential reporting of medical errors
to public and private “patient safety organizations”
certified by the Secretary of Health and Human Services.
Similar bills were reported out by the two committees
in the 107th Congress.
The bills are responsive to the 1999 recommendation
of the Institute of Medicine that Congress assist
in improving patient safety by establishing a means
by which providers could report medical error information
to patient safety data banks on a voluntary, confidential
basis. A key provision of the bills is that reported
data would not be subject to a civil or administrative
subpoena or to discovery in a civil or administrative
proceeding. Access to such data under the Freedom
of Information Act also would be barred.
Early reconciliation of the two bills and passage
by the House is expected. Similar legislation was
considered in the Senate last year but did not reach
the floor because of Democratic objections to the
sweep of the confidentiality provisions. With control
of the Senate now in the hands of the Republicans,
a greater chance of Senate passage now exists.
House Passes
Bills
On March 12, 2003, the House passed H.R.
663 by a vote of 418-6. The Senate could
act before the end of April.
On March 13, 2003, the House passed H.R.
5 by a vote of 229-196 without amendments.
At this writing, Senate Republicans are
still working to draft legislation. |
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