The “Protecting Access to Care Act of 2017” Protects Only the Powerful

Medical Malpractice
Federal Legislation
Damage Caps

By Sean Lally, Staff Writer

On February 24th 2017, a bill was rushed to the floor of the U.S. House of Representatives in order to quicken the process of state-legislated death, a morbid guiding principle of the so-called Grand Old Party. Though there is some evidence of that the GOP’s resolve to repeal Obamacare is fracturing, it seems that the assault from the right may not come in the form of outright repeal, but instead will manifest subtly in pretty packages. After all, how bad could a bill be with a name like “Protecting Access to Care Act of 2017”? As it turns out, pretty bad.

A Litany of Damning Provisions

While the official title of the bill claims “to improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system,” little is said of those who would suffer under its rule. In fact, this Act would shift the burden away from the healthcare providers and insurance companies toward the innocent victims of medical malpractice.

How would H.R. 1215 do this? One of its more insidious federal mandates would provide that compensation for “non-economic” damages cannot exceed $250,000. Unsurprisingly, this damages cap would be felt most intensely by the elderly and other low income earners. These victims would be unable to show substantial economic losses at trial even when the wrongs perpetrated against them were horrific. As an example, under this rule, the spouse or children of a senior in a nursing home who died as a result of gross medical negligence, would be unable to prove economic damages. Consequently, the doctor who committed the malpractice that killed her and the doctor’s insurance company would have no risk of potential liability beyond $250,000. In short, if H.R. 1215 becomes law, doctors would have no financial incentive to avoid negligently harming their patients.

Sadly, this is only the tip of the iceberg, as there’s a whole slew of unconscionable provisions that undermine a person’s right to civil justice, that override state law (contrary to the GOP’s states’ rights principles), that benefit defendants in malpractice cases and relieve healthcare providers of responsibility in cases where unsafe drugs have been prescribed. This latter point is extremely dangerous because it lays the groundwork for pharmaceutical companies to argue that the fault lies not with the negative side effects of the drug but with the ignorance of the doctor who dispensed it. If such a defense were successful, the victim would be left without recourse, creating a situation where victims not only would have trouble paying for their healthcare, but also lose the ability to recover damages for injuries caused by medical malpractice and/or defective drugs.

The Take-Away

With a bill like this, it is all too easy to throw up one’s arms in desperation, to dream of the good old days and to wonder when all will return to normalcy. But none of this emerges out of a vacuum. There is a historical context through which we can begin to understand our predicament. H.R. 1215 belongs to a lineage of legislation dating back to 1995. In fact, this bill is number 12 in a list of attempts to weaken victims’ ability to protect themselves against the wrongdoing of healthcare providers and large pharmaceutical companies.

This example shows that we must stay alert to the Congressional efforts to dismantle protections against abuse by healthcare providers, insurance companies and powerful corporations. In short, we can’t be distracted by the chaos emanating from the White House while Congress destroys decades of law protecting the rights of our citizens and the environment. 

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