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H.R. 1215 (115th): Protecting Access to Care Act of 2017

Health care costs are skyrocketing. Total health care spending went from 7.2 percent of GDP in 1970 to 17.8 percent in 2015. The Centers for Medicare and Medicaid Services projects that it will rise further to 19.9 percent by 2025.

Among the causes of this growth are medical malpractice lawsuits, when patients sue doctors, hospitals, or medical groups. A bill that recently passed a key House committee could significantly curtail this practice. But will it come at too great a cost to patients?

The context and what the bill does

A survey from Archives of Internal Medicine found that 91 percent of physicians believe that the medical community practices “defensive medicine.” Under this practice, health care providers conduct additional procedures and tests with little to no medical value, in hopes of avoiding litigation. Defensive medicine costs an estimated cost of $60 billion per year, not to mention the cost of malpractice insurance.

Introduced by Rep. Steve King (R-IA4) as H.R. 1215, the Protecting Access to Care Act would impose a $250,000 cap on damages that could be brought in most medical malpractice lawsuits. Why most? It caps so-called “noneconomic” damages, which include emotional distress, suffering, and mental anguish. Economic damages sought by patients, including health care costs and salary loss, would not be affected by this bill.

What supporters say

Supporters argue that the legislation would counter a critical part of health care cost growth.

“Just imagine what savings would occur if such reforms were attached to all federal health care programs, as this bill would do. This bill goes a long way to respect states’ rights and give states the authority raise or lower the cap for non-economic damages,” House lead sponsor King said in committee.

“It models legislation that began in California, signed by Gov. Jerry Brown. I’m amazed to be advocating for such a policy, but I’m also impressed by the policy and the progress that has been made in the state of California,” King said of the 1975 law that cut defendants’ liabilities by an estimated 30 percent. “Let’s spread that to the rest of America today.”

Supporters also note that opposition comes almost completely from Democrats, the party receiving the vast majority of campaign donations from trial lawyers, an industry standing to benefit greatly from expensive medical malpractice lawsuits.

What opponents say

Opponents counter that claims of malpractice insurance and defensive medicine driving up health care costs are largely a myth, and that this reform bill could harm patients’ rights.

A Harvard School of Public Health study estimated that total malpractice liability costs make up only 2.6 percent of American health care spending. (Then again, those figures came from before the Affordable Care Act, also known as Obamacare, took full effect. It’s unclear whether the percentage going to malpractice liability costs has changed since then.)

Opponents also note that medical malpractice claims have already been declining even without this bill. Between 2001 and 2013, malpractice costs as a percentage of total health care spending decreased 61.9 percent.

“This bill would cause real harm by severely limiting the ability of victims to be made whole,” House Judiciary Committee lead Democrat Rep. John Conyers (D-MI13) said. “The bill’s $250,000 aggregate limit for noneconomic damages — an amount established more than 40 years ago pursuant to a California statute — would have a particularly adverse impact on women, children, the poor, and other vulnerable members of society. These groups are more likely to receive noneconomic damages in health care cases because they are less able to establish lost wages and other economic losses.”

Odds of passage

The bill has attracted three House cosponsors, all Republicans, and was approved by the House Judiciary Committee on a razor thin 18–17 vote.

The only member crossing the party line on either side was Rep. Ted Poe (R-TX2) voting no. Poe has made a point of bucking his party on other health care issues, as this week he left the right-wing House Freedom Caucus due to their refusal to support the now-defunct Republican health care bill, the ultimately-withdrawn American Health Care Act. GovTrack Insider did not hear back after reaching out to Poe’s office for comment about why he didn’t support the Protecting Access to Care Act.

Last updated Apr 1, 2017. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jun 28, 2017.

Protecting Access to Care Act of 2017

This bill establishes provisions governing health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through a subsidy or tax benefit.

(Sec. 2) In general, the statute of limitations is three years after the occurrence of the breach or tort, three years after medical or health-care treatment for the injury is completed, or one year after the claimant discovers the injury, whichever occurs first. For a minor, the statute of limitations is three years after the occurrence of the breach or tort or three years after medical or health-care treatment for the injury is completed, whichever occurs first, except for a minor under six years old, for whom it is the later of three years after the occurrence of the breach or tort, three years after medical or health-care treatment for the injury is completed, one year after discovery of the injury, or the minor's eighth birthday. These limitations are tolled under certain circumstances. These provisions do not preempt certain state laws.

(Sec. 3) Noneconomic damages are limited to $250,000, before accounting for reductions in damages required by law. Juries may not be informed of this limitation. Parties are liable for the amount of damages directly proportional to their responsibility. These provisions do not preempt state laws that specify a particular monetary amount of damages.

(Sec. 4) Courts must supervise the payment of damages and may restrict attorney contingent fees. The bill sets limits on contingent fees. The bill does not preempt state laws that specify a lesser percentage or value of damages that may be claimed by an attorney representing a claimant.

(Sec. 5) The bill provides for periodic payment of future damage awards. The bill does not preempt state laws that mandate periodic payments.

(Sec. 6) A health care provider who prescribes, or dispenses pursuant to a prescription, a medical product approved by the Food and Drug Administration may not be a party to a product liability lawsuit or a class action lawsuit regarding the medical product.

(Sec. 8) The bill does not preempt federal vaccine injury laws.

(Sec. 9) The bill preempts federal tort laws that provide for greater amounts of damages or contingent fees, a longer statute of limitations, or reduced applicability or scope of periodic payment of future damages.

(Sec. 10) The bill applies to health care lawsuits initiated after enactment. Lawsuits are governed by the statue of limitations applicable at the time of injury.

(Sec. 11) The bill establishes limitations on expert-witness testimony by a health-care professional who was not licensed to practice or had not practiced, in the state or a contiguous bordering state, a relevant profession or specialty during the year preceding the date of the alleged injury or wrongful act.

(Sec. 12) Certain provider communications shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest in a health-care liability action. These provisions do not preempt state laws making additional communications inadmissible as evidence.

(Sec. 13) The bill specifies additional qualifications for expert witnesses in health-care liability actions. These provisions do not preempt state laws placing additional qualification requirements upon individuals testifying as expert witnesses.

(Sec. 14) The bill establishes requirements for the filing of an affidavit of merit. These provisions do not preempt state laws establishing additional requirements for pre-litigation documentation.

(Sec. 15) The bill establishes requirements for the provision of advance notice of intent to commence a health-care lawsuit against a provider. These provisions do not preempt state laws establishing different time periods for the filing of written notice.