Feds Test The Medical Malpractice Reform Waters

On January 24, 2011, a bill was introduced in the United States House of Representatives (H.R. 5) that would have made changes to medical malpractice laws on the federal level.

If H.R. 5 became law, the new law would be known as the “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011.” If H.R. 5 became law, it would provide, in part, that medical malpractice cases would have to be filed within 3 years after the date of manifestation of injury due to medical malpractice or 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first, with few exceptions. For minors, the medical malpractice case would have to be filed within 3 years from the date of the alleged manifestation of injury except for minors under 6 for whom medical malpractice claims would have to be filed within 3 years of manifestation of injury or prior to the minor’s 8th birthday, whichever is longer, with few exceptions.

H.R. 5 provides no limits on economic damages in medical malpractice cases but would limit noneconomic damages to $250,000, regardless of the number of defendants and regardless of the number of separate claims or actions brought with respect to the same injury. The $250,000 cap on noneconomic damages may include future noneconomic damages but the future noneconomic damages would not be discounted to present value for purposes of the cap. No jury would be informed of the existence of the cap or the amount of the cap, and any jury award for noneconomic damages in excess of the cap would be reduced.

H.R. 5 would restrict contingent attorney fees to a maximum of 40% of the first $50,000 recovered, one-third of the next $50,000, 25% of the next $500,000, and 15% of any amount in excess of $600,000 recovered. Furthermore, the courts would have the authority to restrict the attorney’s contingent fee and redirect the damages to the claimants “based upon the interests of justice and principles of equity.” The noneconomic damages cap would apply whether the recovery was received by judgment, settlement, mediation, arbitration, or any other form of alternative dispute resolution.

H.R. 5 would require that punitive damages be available only if it is proven by clear and convincing evidence that the defendant acted with malicious intent to injure the claimant or that the defendant deliberately failed to avoid unnecessary injury such that the defendant knew the claimant was substantially certain to suffer. Punitive damages would be limited to $250,000 or as much as two times the amount of economic damages awarded, whichever is greater. The jury would not be told about the cap on punitive damages or the amount of the cap on punitive damages.

H.R. 5 also provides that if a jury awards future damages (without reduction to present value) that equals or exceeds $50,000 against a defendant with sufficient insurance or other assets to fund periodic payment of such an award, the court would be required at the request of any party to enter a judgment ordering that the future damages be paid by periodic payments in accordance with the Uniform Periodic Payment of Judgment Act promulgated by the National Conference of Commissioners on Uniform State Laws.

H.R. 5 defines “noneconomic damages” as damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature.

H.R. 5 defines “recovery” as the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim, including all costs paid or advanced by any person. Costs of health care incurred by the claimant and the attorney’s office overhead costs or charges for legal services are not deductible disbursements or costs for such purpose.

If H.R. 5 became law, it would preempt state laws to the extent that the state laws would prevent the application of H.R. 5 (nonetheless, H.R. 5 expressly states that it would not preempt any state law, whenever the law was effective, that specifies a particular monetary amount of compensatory or punitive damages that may be awarded in medical malpractice cases whether such monetary amount is greater or less than provided in H.R. 5). H.R. 5 would also preclude the application of certain provisions of current federal laws in medical malpractice cases.

If you have become the victim of medical malpractice in any state in the United States, please visit our website to be connected with medical malpractice lawyers who may be able to assist you with your medical malpractice claim or call us toll free at 800-295-3959.

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This entry was posted on Sunday, August 28th, 2011 at 4:18 pm. Both comments and pings are currently closed.

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