Republican legislators in the US House of Representatives have taken two steps closer to their long-standing goal of restricting the civil justice system, the Washington Post reports. On Thursday, February 9, 2017, the House narrowly passed two new acts that could have a major impact on victims of medical malpractice, along with patients harmed by dangerous prescription drugs and victims of civil rights abuses. Democrats in Congress remain unconvinced, accusing their conservative peers of ramming the legislation through without proper scrutiny.
Republican House Quietly Passes Two Laws To Limit Civil Lawsuits
The Innocent Party Protection Act, which passed 224 to 194, would allow more lawsuits to be transferred from state courts to federal courts, where judges and juries have not proven as friendly to plaintiffs. The law amends existing federal statute to make it more difficult for attorneys to join multiple defendants – all hailing from the same state – in a single lawsuit for “fraudulent” reasons. Supporters of the bill say this tactic is used to keep lawsuits in plaintiff-friendly courts where they don’t really belong. Critics, however, argue that the legislation only serves to protect the interests of consumer product and pharmaceutical manufacturers, who often fare better in federal courts, but find it difficult to reach those courts when a local pharmacy or retailer is involved in the case.
The Fairness In Class Action Litigation Act also passed Thursday night, by a slightly wider margin – 220 votes to 201. The law requires proof – before a class can be certified by a federal court – that each proposed member of the class has suffered “the same type and scope of injury.” The measure could severely restrict all class actions eventually, with particularly onerous effects for victims pharmaceutical negligence and workplace harassment. “This doesn’t formally abolish the class-action mechanism,” Maryland State Representative Jamie B. Raskin, a Democrat, told The Hill. “It’s not the guillotine, but it’s a straight jacket.” Class action is one of the only viable avenues many litigants will be offered. By banding together, forming a “class” of “similarly-situated” individuals, thousands of injured plaintiffs are able to take on major corporations, pooling their resources and spreading the cost of litigation around.
Both laws passed the House along party lines. Republicans gave their full-throated support to the legislation, saying the courts have been overrun with “frivolous lawsuits,” filed only to ruin reputations and undermine legitimate businesses. Democrats, on the other hand, have condemned the bills, arguing that any further controls on civil litigation will close courthouse doors even to deserving plaintiffs. Despite these concerns, the legislation will now head to the Senate, where other efforts to reduce civil litigation have stalled in recent years. With President Trump now in office, supporters of the measures expect more favorable results in Congress’ upper chamber.
Congress Moves Quickly To Reform Civil Justice System
Congress has moved surprisingly quickly in recent months, hurrying to hold votes on major pieces of litigation that directly impact the civil justice system. President’s Trump’s endless controversies are partially to blame, according to Jamie Raskin, a leading opponent of both the Innocent Party Protection Act and Fairness In Class Action Litigation Act. “While the populace is spellbound by [Trump],” Raskin told reporters, “the conservatives in Congress are dismantling access to justice and our tort civil liability system.”
Tort law covers a vast domain of civil litigation, including medical malpractice lawsuits. A “tort,” as the Cornell University Law School explains, is “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.”
When the Affordable Care Act (Obamacare) passed back in 2010, Republicans criticized their liberal counterparts for ramming the legislation through. The same thing is happening now, Democrats say, but this time, injured patients are the ones who will lose out. Even conservative lawmakers have noticed the irony. “We need to be as open and transparent as possible,” says Ken Buck, a Republican Representative from Colorado. “This was the complaint with Obamacare; that it was forced down our throats without enough discussion.” The irony is two-fold, however, since both bills were passed during National Consumer Protection Week, an initiative of the Federal Trade Commission intended to empower consumers.
Indiana, Missouri & Kentucky Bullish On Tort Reform
Need more evidence that conservative politicians are ramping up their efforts to push through “tort reform”? State legislatures across the nation have taken up the charge, endorsing a host of state-level bills that would put limits on medical malpractice lawsuits.
Iowa Pushes Toward Comprehensive Malpractice Change
On March 20, 2017, Iowa’s Senate passed a medical malpractice reform bill, dubbed Senate File 465, that is nearly unprecedented in scope. Featuring four major provisions, the bill hopes to place a restrictive cap on the damages allowable in a medical negligence cap, while screening out “frivolous” cases by requiring certificates of merit.
The law passed Iowa’s Senate by a vote of 28 to 21, largely along party lines. It will now head to the State’s House of Representatives, which is currently controlled by a 59 to 41 Republican majority.
1. Adverse Health Care Incidents
Senate File 465 attempts to open the lines of communication between doctors and patients, allowing physician’s a measure of protection when they decide to speak openly about medical errors. After a medical error has occurred, Iowa’s new law encourages doctors to offer their patients an open conversation that, if agreed to, would allow the physician to investigate the adverse incident, disclose the results of that investigation to the patient and discuss how similar errors in the future could be prevented.
In fact, the law even provides physicians the latitude to tell their patients whether or not compensation would be appropriate. However, nothing said in these discussions, even admissions of liability, would be privileged and confidential, the Des Moines Register reports. None of the physician’s statements would be admissible as evidence in a subsequent court proceeding.
2. $250,000 Non-Economic Damages Cap
The bill continues by setting a maximum limit for non-economic damages, which are intended to compensate victims of malpractice for losses that cannot be quantified precisely. Iowa’s pending law sets out an incomplete list of damages that would be considered “non-economic” for purposes of the cap:
- physical impairment
- mental anguish
- emotional pain and suffering
- loss of chance – reduction in chances of recovery or better medical outcome
- loss of consortium – damages suffered by spouse or family member because injured victim can no longer provide the same love, affection, companionship, comfort or sexual relations that were possible before the incident
- other nonpecuniary (not relating to money) damages
If signed into law, Senate File 465 would cap these damages at $250,000, with only one exception. The limit would not apply in cases where the defendant health care practitioner’s actions are deemed to constitute actual malice, the intention to inflict injury or harm.
3. Heightened Expert Witness Standards
Most malpractice lawsuits hinge on the concept of a “standard of care,” which dictates how a particular medical professional should have proceeded during diagnosis or treatment. Malpractice attorneys rely on the testimony of independent medical experts to establish standards of care. Iowa’s legislature wants to increase the requirements for these experts, creating almost complete equity between the defendant being sued and the witness testifying against their medical actions.
Under Senate File 465, expert witnesses called by plaintiffs will be required to practice in the “same or a substantially similar field as the defendant.” Plaintiffs’ expert witnesses would also have to be in good standing with their state’s licensure board.
4. Certificate Of Merit Affidavits
Most cases of medical malpractice come down to complex questions of medical practice. That’s why the testimony of medical experts is so important; without expert guidance, few jurors would have the understanding or knowledge to decide these cases in the first place. Iowa is hoping to insert those expert opinions earlier in the litigation process, requiring plaintiffs to provide the defendant with a certificate of merit before the lawsuit’s evidence-gathering process begins. The document, signed by an expert medical witness, would outline the standard of care relevant to the claim and explain how the defendant allegedly violated that standard.
Missouri House Limits Who Can Be Sued In Medical Negligence Cases
Just three days before Iowa’s Senate passed its own malpractice reform package, the House of Representatives for the State of Missouri adopted a new bill that would bar certain defendants from being included in medical negligence cases, according to the Missourian. In accordance with the proposed law, which will now head to Missouri’s Senate, patients will only be allowed to sue a hospital if the negligent physician at issue was an employee of that institution at the time of malpractice. In short, health care employers won’t be held liable for the actions, no matter how injurious, of doctors who only hold admitting privileges in their facilities. That’s true even though most hospitals exert significant control, often through credentialing panels, on physicians that receive admitting privileges.
The bill passed Missouri’s House by a healthy margin, 101 to 50.
Kentucky Leads Nation In Tort Reform Action
Tort reform may be closest to actual passage, though, in Kentucky, where the State’s House of Representatives just passed a bill to establish medical review panels – tribunals of attorneys and doctors who will pre-screen claims before a lawsuit can be filed. Senate Bill 4 has already passed Kentucky’s Senate and is now headed to the desk of Governor Matt Bevin, who is widely expected to sign the measure into law.