In a letter dated March 21, 2016 from the American Bar Association (“ABA”) addressed to the Chairman of the U.S. House of Representatives Committee on the Judiciary and to the Ranking Member of the Committee, the ABA expressed its opposition to H.R. 4771, the “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2016.” The ABA opposes the proposed legislation because it believes that the U.S. Congress should not substitute its judgment, as is proposed in H.R. 4771, for the medical liability systems that have evolved in each state over time.
The ABA’s letter noted that the authority to determine medical liability law has rested in the states for over 200 years, with each state having the autonomy to regulate the resolution of medical liability actions within its own borders, and further noted that the states also regulate the insurance industry. Because of such, the ABA notes that the states are the repositories of experience and expertise in these matters.
The ABA’s Opposition To Caps On Damages
The ABA’s position is that compensatory damages should not be capped at either the state or federal level, and therefore opposes the proposed federal cap in the amount of $250,000 on noneconomic damages in medical malpractice cases. Citing its own research on federal and state legislative efforts to impose limits on noneconomic damages, including pain and suffering, the ABA’s letter stated that empirical research has shown that caps diminish access to the courts for low-wage earners, like the elderly, children, and women. Furthermore, the ABA’s research shows that if economic damages are minor and noneconomic damages are capped, attorneys are less likely to represent these potential plaintiffs in such cases.
The ABA stated that those affected by caps on damages are the patients who have been most severely injured by the negligence of others, and that these patients who reside in communities around the country should not be told that, due to an arbitrary limit set by members of the U.S. Congress, they will be deprived of the compensation determined by a fair and impartial jury.
The “Fair Share” Rule
The proposed federal legislation provides that each party would be liable only for its share of any damages, which would preempt many existing state laws that provide for joint and several liability in medical liability cases. Although the ABA believes that state laws that provide for joint and several liability should be modified to recognize that defendants whose responsibility is substantially disproportionate to liability for the entire loss suffered by the plaintiff should be held liable for only their equitable share of the plaintiff’s non-economic loss, the ABA opposes federal preemption of the medical liability laws of the states and territories. (The ABA opposes Section 4(d) of the proposed federal law to the extent that it would preempt existing state laws and to the extent that it would apply a proportionate liability rule to all damages, not just the plaintiff’s non-economic damages.)
The proposed federal law would empower a court to reduce the contingent fees paid from a plaintiff’s damage award to an attorney, redirect damages to the plaintiff, and further reduce contingent fees in cases involving minors and incompetent persons. The ABA opposes such restrictions, having adopted a policy in 1986 that “no justification exists for imposing special restrictions on contingent fees in medical malpractice actions.”
The ABA’s policy is based on its Special Committee on Medical Professional Liability findings in 1985 that “A sliding scale for contingency fees in medical malpractice litigation may very well reduce total awards for patient-victims by depriving them of representation by a trial lawyer sufficiently skilled at obtaining the highest appropriate award. Mandatory sliding scale systems could also inhibit claimants’ access to the court system by limiting the availability of counsel. And imposing sliding scales only in medical malpractice cases would, in effect, create different level of skills among available counsel for plaintiffs in medical malpractice cases from those available to claimants in other tort cases.”
The ABA’s letter concludes, “The American Bar Association remains committed to maintaining a fair and efficient justice system where victims of medical malpractice can obtain redress based on state laws, without arbitrary or harmful restrictions.”
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