Contradictions in the Protecting Access to Care Act

 
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Medical Malpractice
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Tort Reform Legislation

By Sean Lally, Staff Writer

So-called states’ rights advocates often withdraw from their deeply held federalist beliefs as soon as those beliefs run counter to underlying corporate interests. Thus, formal ideology takes second place to material financial concerns. This is evinced by the Republican-sponsored bill, The Protecting Access to Care Act (PACA), which passed in the House late last month with a vote of 218 to 210 and with 19 Republicans voting against the measure. One alarming provision that is the introduction of a federal $250,000 cap on noneconomic (or pain and suffering) damages in medical malpractice cases, a measure that would undermine constitutions in 18 states.

Supporting Rationale

Proponents of a cap on noneconomic damages argue that, sans limitations, “jury passions or sympathies, rather than the merit of the claim itself” govern award outcomes, thus this type of damages is arbitrary. Moreover, they argue, the introduction of caps alleviates pressure on insurance rates by supplying predictability to the market and reducing risk. Additionally, supporters say, reduced risk means doctors will stay in-state and provide treatment without superfluous tests and measures, lowering health care costs across the board. In this way, proponents claim that caps might help save the health care system.

At least, that’s what Wisconsin legislators claimed when they introduced their $750,000 cap on pain and suffering damages, a measure that earlier this month was declared unconstitutional by a Wisconsin appeals court.

Opposing View

In her opinion for the majority, Judge Joan Kessler found that arguments in favor of caps were fundamentally flawed. For one, “data suggests that the existence of noneconomic damages caps may actually increase the risk to patient safety,” wrote Kessler. As for keeping doctors in-state: “Data demonstrates that many states with no caps on noneconomic damages actually have higher physician retention rates than Wisconsin.” Finally – and perhaps this is the crux of the matter – the court found no signs of an actual malpractice crisis, as only 84 such claims were filed in 2014, according to an amicus brief submitted by the Wisconsin Association for Justice.

A Constructed Crisis

If the crisis was essentially fabricated in Wisconsin, could that be the case on the national level? There’s at least evidence to show that the narrative of run-away lawsuits filed by rapacious plaintiffs is most likely false. According to the much-cited Harvard Medical Practices Study (1993), “Most American doctors fervently believe that the present-day malpractice litigation is excessive and erratic,” while actually, “the medical setting has provided the strongest evidence that the real tort crisis may consist in too few claims”.

What about keeping insurance premiums low? A 2003 report by the Government Accounting Office (GAO) found no evidence to show that damage caps have positive effects on insurance rates and claims frequency. In fact, the report concluded the opposite: that states with no caps tended to have premium increases at lower rates than the rest of the country and states with caps tended to have premium increases that were higher than the national average.

Disproportionate Effects

Lucinda M. Finley, professor at the University of Buffalo Law School, collated these studies (and more) in a 2005 paper entitled “The Hidden Victims of Tort Reform: Women, Children, and the Elderly.” In it, Finley argued that in addition to disproportionately affecting the poorer population and minorities, caps on noneconomic damages have destructive effects on women in tort cases, as “juries consistently award women more in noneconomic loss damages than men, and that the noneconomic portion of women’s total damage awards is significantly greater than the percentage of men’s tort recoveries attributable to noneconomic damages.”

The Real Winners

Of course, the American Medical Association (AMA) is thrilled at the result. "This legislation is an important step toward fixing that system—a step that reins in defensive medicine, reduces the growth of healthcare costs, and strikes the correct balance by promoting speedier resolutions of disputes—while maintaining an injured patient's access to just compensation," said Dr. David Barbe, president of the AMA, to ModernHealthCare.com.

The bill is now working its way through the Judiciary Committee in the Senate. Opponents of the measure hope Senators will consider the destructive effects this bill could have on everyday people.

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