Tort reform has reared its ugly head once again, this time, the “Protecting Access to Care Act” (HR1215).
While this legislation may have a catchy, pro-citizen name, HR 1215 does nothing to protect a citizen’s access to care. It is simply the latest measure intended to deny the right to pursue litigation if you or a loved one is injured, maimed, or killed due to medical malpractice, negligent nursing homes, dangerous medical devices, or dangerous drugs. First, HR1215 would make all healthcare claims federal cases, bypassing state laws. Under this draconian legislation, patients would be required to submit their case to a panel of three doctors. That panel would decide whether the doctor’s conduct complied with certain professional rules. If the panel determines that the rules of practice were followed, the case is dismissed, unless the patient overcomes the finding by “clear and convincing evidence.” And, even if the patient overcame the panel’s findings and the case proceeds, the panel’s adverse findings are presented to the jury.
HR 1215 also places a federal mandate on the value of a life, in the form of an across-the-board $250,000 damages cap on pain and suffering,, regardless of the degree of harm done. It would be mandated in states even where such caps are unconstitutional. And that’s not all! Other provisions of HR1215 include:
- Imposing a statute of limitations of three years from the date of injury or one year from when an injury is discovered.
- Restricting the amount of money you can receive by the amount of disability, workers compensation or other insurance received, to which a patient has a right.
- Federal repeal of state joint and several liability laws, meaning that the injured patient must cover the cost of an injury if one of the wrongdoers cannot pay.
- Restricting who you can sue in a case against a drug company over an unsafe drug, even if a healthcare provider negligently prescribed or administered the drug and is jointly responsible for causing injury or death.
- In cases where the plaintiff wins the case, the insurance company may pay the settlement or verdict in installments rather than in a lump sum payment, keeping more in their pockets and further hindering the innocent victim.
The “Protecting Access to Care Act of 2017” is all about protecting negligent doctors, negligent hospitals and other negligent medical providers from being held fully liable for the harms they’ve caused by denying full and fair compensation their victims. Why should a healthcare provider be entitled to blanket immunity for dispensing a defective or dangerous pharmaceutical or medical device? That is what happens when a drug or device permanently injures thousands, but it takes more than three years for the evidence to come to light. If politicians really want to protect people’s access to medical care, then they should focus on fixing the problems and ensuring safe medical care in the first place rather than limiting victim’s rights. They should focus on stopping the few doctors who are serial medical malpractice committers (Dr. Stefan Konasiewicz [Dr. K] comes to mind) instead of inventing ways to protect them.
The only thing HR 1215 will do is erode consumers’ rights and richly reward wrongdoers. Any attempt to take power away from a jury is an attempt to take power from our citizens. Thomas Jefferson called civil jury trials, “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Prior lawmakers felt that this was so important, they embodied it in the 7th Amendment of the Constitution.
Our Founding Fathers agreed with the importance of a trial by jury. Don’t you?
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.