Senators may stall medical liability-reform legislation

Andis Robeznieks
Senior Staff Writer
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A medical liability-reform bill was passed by the U.S. House of Representatives with a 218–210 vote and could help lower premiums and reduce costs associated with defensive medicine, but the legislation faces an uphill climb in the Senate.

The bill, the Protecting Access to Care Act of 2017 (H.R. 1215), would apply to lawsuits connected to care provided or subsidized by the federal government and would:

  • Limit non-economic damages to $250,000.
  • Place a three-year statute of limitations on medical liability suits from the date of injury (with some exceptions).
  • Create a “fair-share” rule in which a defendant would be liable only for his or her share of responsibility for a medical injury.
  • Shield from litigation providers who prescribe or dispense Food and Drug Administration-approved products.

The bill also includes language to protect medical liability reforms at the state level.

The House vote was cheered by the AMA.

“For too long, our broken medical liability system has resulted in increased health care costs and slowed access to care for patients,” AMA President David O. Barbe, MD, said in a statement. “This legislation is an important step toward fixing that system—a step that reins in defensive medicine, reduces the growth of health care costs and strikes the correct balance by promoting speedier resolutions of disputes—while maintaining an injured patient’s access to just compensation.”

Dr. Barbe added that money spent on defensive medicine could be redirected to “patient care, safety and quality improvements, and to health information technology systems that would help improve care and outcomes.”

AMA Executive Vice President and CEO James L. Madara, MD, noted the Association’s strong support for the bill in a letter to House Speaker Paul Ryan, R-Wis., and Minority Leader Nancy Pelosi, D-Calif.

Dr. Madara wrote that the bill protects existing reforms enacted by individual states, promotes speedier resolutions and allows unlimited compensation for economic damages while limiting non-economic damages.

“We believe that the proven reforms contained in H.R. 1215 would greatly improve our medical liability system, while ensuring that patients who have been injured receive just compensation,” Dr. Madara wrote. “It is time for Congress to enact meaningful medical liability reform legislation to repair the current litigious climate that continues to increase health care costs and compromise patients’ access to care.”

CBO sees billions in savings

The nonpartisan Congressional Budget Office (CBO) estimated that enacting the bill would lower national health spending by 0.4 percent due to less spending on medical liability premiums and “slightly less utilization” of health care services.

Implementing the measure could result in a federal deficit reduction of $14 billion over the next five years and almost $50 billion over the next 10 years by reducing direct spending by $44 billion and increasing revenues by about $5.9 billion, according to the CBO.

It also projected a savings of $1.5 billion over the next 10 years due to reduced costs for the Federal Employees Health Benefits Program and the Departments of Defense and Veterans Affairs health systems.

The CBO noted that many states have already implemented similar reforms, so “a significant fraction of the potential cost savings has already been realized.” Despite such savings, some experts see a tough road ahead in the Senate if bill needs to meet the 60-vote threshold to avoid filibuster and proceed to consideration.

“If it needs 60 votes, I don’t see 60 votes there,” Jeff Segal, MD, JD, CEO and founder of Medical Justice, a Greensboro, North Carolina-based company that advises physicians on deterring and responding to frivolous lawsuits, said in an interview with AMA Wire®. “I’m skeptical it will pass the Senate.”

Concerns about federalizing issue

The bill passed the House without any votes from Democrats and despite 19 Republicans voting against it. In order for it to get 60 votes, Dr. Segal said the bill would need to be attached to a larger piece of legislation.

The bill’s $250,000 cap on non-economic damages mimics California’s Medical Injury Compensation Reform Act (MICRA), which was passed in 1975.

“They want to federalize what has worked in California,” Dr. Segal said, adding that many conservative Republicans “are not jumping up and down” in enthusiasm over federalizing what has traditionally been a state issue.

Also working against passage, is the fact that Affordable Care Act repeal-and-replace efforts are “sucking up all of the oxygen” and turning medical tort reform into a second- or third-string issue, Segal said.

The Physician Insurers Association of America (PIAA) is not as pessimistic.

“Unlike previous federal bills, however, the bill is focused solely on health care professionals and entities, includes more flexibility for states than previous federal medical liability-reform bills, and applies only to medical liability claims involving care provided through the expenditure of federal dollars (including federal tax benefits),” a PIAA news release stated.

The bill will be discussed in the Senate Judiciary Committee, but a hearing has not yet been scheduled.

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