ABA Objects to Damages Cap, Tort Rule Changes in Med-Mal Bill
The American Bar Association is expressing concerns about damages caps and changes to common-law tort rules in a medical liability bill known as the Health Act of 2011.
Thomas Susman, director of the ABA Governmental Affairs Office, sent a letter (PDF) outlining the concerns to the House Energy and Commerce Committee, which was scheduled to consider the bill this week.
The ABA objects to these provisions:
• A $250,000 cap on noneconomic damages, including pain and suffering. “Empirical research has shown that caps diminish access to the courts for low wage earners, like the elderly, children and women; if economic damages are minor and noneconomic damages are capped, attorneys are less likely to represent these potential plaintiffs,” the letter says. It also points out that judges can reduce excessive damage awards through remittitur.
• Proportionate liability, in which each defendant is liable only for its share of the damages. The provision would pre-empt state laws providing for joint and several liability in medical malpractice cases. The ABA opposes pre-emption, although it supports state level changes so that defendants are responsible only for their equitable share of noneconomic losses in cases of substantially disproportionate responsibility.
• Court authority to reduce contingent fees. The ABA has long opposed sliding scales for contingent fees and other special restrictions on such fees, the letter says.
• Elimination of the collateral source rule, which bars evidence that a plaintiff has received health insurance proceeds or other benefits from a third party. The ABA supports retention of the collateral source rule while allowing third parties who provided benefits to plaintiffs to seek reimbursement out of the recovery.
The bill is the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011.
