This week, medical liability was the priority for several committees. The House Judiciary Committee held a hearing on the issue, and both the House Judiciary and Energy and Commerce Committees approved a bill (H.R. 5) that would limit non-economic medical malpractice awards to $250,000 and limit attorneys’ fees. Sponsored by Rep. James Greenwood (R-PA), H.R. 5 would cap punitive damages at twice the economic damages, or at $250,000, whichever is greater.
Under the bill, punitive damages could not be awarded in cases that did not grant economic awards, and courts would be required to find “a substantial probability” that the plaintiff could win punitive damages before a request for such damages could be filed.
The House is expected to consider H.R. 5 next week.
Energy and Commerce
On March 6, the House Energy and Commerce Committee approved H.R. 5 by voice vote. The committee rejected a number of Democratic amendments that would have increased the cap on malpractice awards, reduced insurance premiums, and exempted nursing homes from the bill, among other things.
The committee defeated, 20-31, a substitute amendment offered by Ranking Member John Dingell (D-MI) that would have eliminated the proposed $250,000 cap on non-economic damages. The amendment would have included sanctions for frivolous lawsuits and would have included gross negligence and reckless indifference to life as part of punitive damages. Additionally, the Dingell amendment would have required that half of the funds saved from the sanctions be used by malpractice insurers to reduce insurance premiums. The amendment also would have required a study of malpractice insurance cost increases and exemptions for HMOs and drug and medical device companies.
Earlier in the week, the House Energy and Commerce Subcommittee on Health approved H.R. 5 by voice vote. During the mark-up, the committee rejected, 9-16, a substitute amendment offered by Rep. Dingell that was similar to the amendment he offered during the full committee’s consideration of H.R. 5.
Judiciary
On March 5, the Judiciary Committee approved, 15-13, H.R. 5. Amendments were offered by many Members, including an amendment by Rep. William Delahunt (D-MA) that would have given minors up to 21 years to file suits. The amendment was defeated, 15-19. Rep. Delahunt also offered an amendment that would have increased the cap on non-economic damages from $250,000 to $1.6 million. It was defeated, 14-15.
Rep. Howard Berman (D-CA) offered an amendment that would have required state licensing and disciplinary agencies to make public the names of any doctors or health care organizations that pay more than $10,000 on a malpractice claim and of doctors whose privileges as a doctor are revoked or restricted for medical disciplinary reasons. The amendment was defeated, 10-16.
An amendment offered by Rep. Jerrold Nadler (D-NY) would have limited the sealing of medical malpractice settlement information. It was defeated, 13-19. Rep. Nadler also offered an amendment that would have indexed the $250,000 cap on non-economic damages to increases in the cost-of-living annually. The amendment was defeated, 16-17.
Rep. Melvin Watt (D-NC) offered an amendment that would have applied the bill only to federal court cases. It was defeated, 12-18.
One day before the committee approved H.R. 5, the committee held a hearing on the subject.
Appearing on behalf of the American Medical Association (AMA), Dr. Donald Palmisano testified in support of H.R. 5, saying the bill is necessary in order to “promptly reform the medical liability system.” He added that the “health care system is facing a crisis when pregnant women cannot find an obstetrician-gynecologist (ob/gyn) to monitor their pregnancy and deliver their baby.” According to Dr. Palmisano, in 2002, ob/gyns in California paid up to $72,000 in medical liability premiums while in Florida, where non-economic damage awards are not limited, ob/gyns paid up to $211,000 for liability coverage.
Sherry Keller also testified before the committee as a victim of medical malpractice. Ms. Keller explained that after undergoing a complete hysterectomy, her doctor failed to suture her incisions. Instead, he only stapled them shut. Upon the removal of her staples, Ms. Keller lost consciousness and fell to the ground. She explained that as a result of her fall, she severely injured her spinal cord and is now a quadriplegic. Ms. Keller then noted that “despite the extent of [her] physical pain and suffering…the only compensation [she] would receive is $250,000.” She then asked, “How can physicians not be held accountable for the extent to which their errors have devastated lives?”
