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Protecting Access to Care Act a big blow to justice for injury victims

March 6, 2017 by Steven M. Gursten

The ‘Protecting Access to Care Act of 2017’ is all about shielding negligent doctors, negligent hospitals and negligent medical providers from being held fully liable for the harms they’ve caused — at the expense of those they have harmed

Protecting Access to Care Act, noneconomic damages cap
By capping “noneconomic damages,” the Protecting Access to Care Act hopes to ensure “better patient care” and “fair and adequate compensation” for personal injury victims. How?

So-called “tort reform” is, once, again, rearing its head.

And, as usual, it’s the personal injury victims — those who have been harmed but who have no clout, no lobbyists in Washington, no multimillion-dollar PACs to wine and dine influential (Republican) politicians — are right in the crosshairs.

In keeping with tradition, Congressman Steve King (R-Iowa)’s H.R. 1215 is named the “Protecting Access to Care Act of 2017,” even though it has precious little to do with:

  • Improving “patient access to health care services”;
  • Ensuring “better patient care”; or, “[R]educ[ing] unintended injury and improv[ing] patient care.”

If any of those were truly the goal of this misleadingly labeled legislation, then it proposals would likely bear a stronger resemblance to the recommendations made in the Johns Hopkins Medical School study showing that “Medical error is the third most common cause of death in the US …”

Instead, this rubbish of a bill is all about shielding negligent doctors, negligent hospitals and negligent medical providers from being held fully liable for the harms they have caused — at the expense of those they have harmed.

A wonderful example of the “alternative facts” of this bill is the disconnect between the bill’s stated purposes and what it will actually do if enacted. They are quite different.

The “Act” claims it seeks to “reform” the “civil justice system[’s]” “health care liability system” in order to:

  • Make it a less “costly and inefficient mechanism for resolving claims of health care liability and compensating injured patients …”; and,
  • “[E]nsure that persons with meritorious health care injury claims receive fair and adequate compensation, including reasonable noneconomic damages …”

Yet, the so-called “Protecting Access to Care Act” couldn’t have picked a more bewildering and obviously unrelated way of accomplishing those goals:

Capping “noneconomic damages” — such as compensation for pain and suffering, mental anguish, disfigurement, loss of enjoyment of life and loss of consortium — at the arbitrary, unrealistically low and absurd level of $250,000.

In other words, it’s the “same old, same old” from the insurance companies pushing tort-reform — except now with the Republicans in charge of all three branches of government, the lobbyists are sniffing at opportunity to enact one-sided legislation.

Adding insult to injury, the House Judiciary Committee decided that H.R. 1215’s protections from liability should extend to some of the worst, most harmful members of the medical profession:

  • Doctors who have operated on the wrong body part or wrong person;
  • Health care providers who have intentionally caused harm and/or caused harm due to sexual abuse.

I know this is a little outside the realm of what I normally blog about on this auto law blog, but as an attorney I feel compelled to speak out about tort reform garbage like this.

It protects wrongdoers by denying full and fair compensation to their victims. Since when have we been concerned with protecting doctors who are sexual predators?

As an auto accident attorney in Michigan, I have used this blog to speak out on protecting victims of motor vehicle accidents and making sure they have full access to the courts.

Measures like this — in this ridiculously named “Protecting Access to Care Act” — hurt everyone by giving negligent professionals a pass, while denying victims access to adequate compensation after they’ve been denied access to safe health care services.

If it’s so great, why don’t you want people to know about it?

Politicians, who want to hamstring victims’ ability to recover pain and suffering compensation for their injuries, will, inevitably, claim that capping their “noneconomic” loss damages at an arbitrary and absurdly low level will somehow make the system run more smoothly and fairly and, thus, make life better for personal injury victims.

Yet, they never want juries to know about these cheap, miserly and unfair limitations.

The so-called “Protecting Access to Care Act” is no exception.

After it announcing it grandiose, problem-solving proposal that “the amount of noneconomic damages” in a “health care lawsuit” “shall not exceed $250,000 …” the bill calls for total secrecy in front of jurors:

“The jury shall not be informed about the maximum award for noneconomic damages.”


If the proposal is so great for victims and the system and everyone’s “access to care,” then why not let jurors know about it?

Or is it that politicians don’t want the public — their constituents serving on juries — to know that a verdict based a careful and time-consuming weighing of the testimony and the evidence is meaningless and counts for nothing?

How is the public protected by this legislation? It seems the only winners will be the medical and insurance industries who regularly pour wheelbarrows full of cash into the politicians’ campaigns.

Protecting access to SAFE ‘health care services’

If politicians really want to protect people’s access to medical care, then they should focus on measures to ensure the safety of medical care — the third leading cause of death in this country.

Awarding “noneconomic loss” damages — like pain and suffering compensation and loss of consortium – after a doctor has committed medical negligence and malpractice is not what’s driving up the price of health care.

And if it is, then the obvious solution for politicians is to focus on stopping the same small group of doctors who are committing most of the medical malpractice today — not protecting them.

Politicians who genuinely care about personal injury victims’ access to safe medical care would do well to start with the Johns Hopkins University School of Medicine’s 2016 published study, “Medical error — the third leading cause of death in the US,” which concluded:

“Medical error is the third most common cause of death in the US …”

For well-intentioned, safety-oriented politicians, the study also makes the following significant recommendations for how deadly medical errors can be prevented, i.e., “[s]trategies to reduce death from medical care”:

  • “[M]aking errors more visible when they occur so their effects can be intercepted,” which will require “individuals” to have the “knowledge of remedies” and the “skill to intercept harm” and will require the health “system” to “institute safety triggers to alert staff” and “facilitate a culture of speaking up.”
  • “[H]aving remedies at hand to [“to respond to error” and, thus,] rescue patients,” which will require “individuals” to have “clinical skill” and “sound judgment” and will require the health “system” to “make remedies available” and to “support clinician needs.”
  • “[M]aking errors less frequent by following principles that take human limitations into account …,” which will require “individuals” to have “error awareness” and to “call[] for help and will require the health “system” to “foster [a] culture of safety” and “engineer hard stops for prevention.”

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