April 01, 2017

House postpones action on medical liability legislation before leaving for two-week break

The House left town for a two-week recess this month without taking a vote on H.R. 1215, an ABA-opposed bill that would preempt state laws to impose caps of $250,000 on non-economic damages and place limits on contingency fees that lawyers can charge in medical liability cases.

The legislation cleared the House Judiciary Committee on an 18-17 vote after the committee rejected numerous amendments offered by the panel’s Democrats, who maintain that the legislation would impose an unjustifiably low cap on non-economic damages.

ABA Governmental Affairs Director Thomas M. Susman, explaining the ABA’s opposition in a Feb. 27 letter to the committee, emphasized that the authority to determine medical liability law has rested in the states for more than 200 years and that the system is a “hallmark of our American justice system.” He said Congress should not substitute its judgment for the systems that have evolved over time in the states, which are the repositories of experience and expertise in these matters.

Susman cited three major areas of concerns with the bill.

Damages. The ABA believes that damages should not be capped at either the state or federal level, pointing out that research has shown that caps diminish access to the courts of low-wage earners such as the elderly, children and women. Those affected by caps on damages are the patients who have been most severely injured by the negligence of others.

Proportionate Liability. A fair share rule created by the bill would provide that each party would be liable only for its share of any damages, preempting existing state law that provides for joint and several liability in medical liability cases. The ABA supports the principle that defendants whose responsibility is substantially disproportionate to liability for the entire loss suffered by the plaintiff should be held liable for only their equitable share of the plaintiff’s non-economic loss, the association believes that these changes should be made by the states.

Contingent Fees. The ABA opposes provisions in H.R. 1215 that would empower courts to specify maximum percentages for contingent fees paid from a plaintiff’s damage awards to an attorney and to authorize  fees that are less than the maximum percentage in cases involving minors and incompetent persons. After studying the issue, the ABA concluded that a sliding scales and other restrictions on contingency fees in medical liability cases may reduce total awards for patient-victims and deprive them of representation by the most highly skilled trial lawyers for their cases.

“The ABA remains committed to maintaining a fair and efficient justice system where victims of medical malpractice can obtain redress based on state laws, without arbitrary or harmful restrictions,” Susman wrote.

The House will return from its break on April 25, but no further action is scheduled for H.R. 1215.        

 

 

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