Non-economic Damages to Be Limited at $250,000 by New Tort Reform Bill
Medical records review is an important step in med mal and nursing home negligence cases. A new bill imposes a cap on non-economic damages in such cases.
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Nursing home negligence and medical malpractice cases require a thorough medical records review and chronological case report that will help attorneys understand the specifics of each case. Medical expert witnesses are also required to provide testimony in such cases. In any hospital or other care facility, patients are entitled to receive a certain basic level of care. In nursing home negligence and medical malpractice cases, patients have a legal right to compensation for any harm caused to them by the negligence of another. The injured person can potentially recover economic and non-economic damages. Economic damages include medical bills, loss of earning capacity, vocational rehabilitation, household services and out-of-pocket costs. Non-economic damages may include pain and suffering both physical and emotional, loss of enjoyment of activities, worsening of earlier injuries, and so on. Non-economic Damages May Be More Severe Often, the greatest losses a person suffers may be non-economic. Many plaintiffs seek compensation for their loss of joy in living after an injury caused by negligence or malpractice. Serious injuries could severely limit a person from enjoying the activities he/she was previously able to enjoy. An increasing number of older adults suffer abuse or injury at nursing homes and other care facilities, and often their care providers are to blame. While some of these injuries stem from negligence, there are others that result from the intentional actions of caregivers. Juries may find it difficult to determine the correct monetary value for non-economic losses mainly because there is no direct economic loss and no solid evidence such as bills or receipts on which they can base the award. Non-economic damages have been subject to tort reform laws in many states. Tort reform advocates are of the opinion that non-economic damages can be excessive since they are often awarded on the basis of emotions rather than proof. In most U.S. states, there is no cap on non-economic damages in personal injury cases though there is a cap on non-economic damages in medical malpractice cases. The New Tort Reform Bill In June this year, the U.S. House of Representatives passed a tort reform bill that according to some lawyers’ groups would limit non-economic damages to cases across the nation at $250,000 and possibly “eviscerate� certain cases against pharmaceutical and medical device manufacturers. The Protecting Access to Care Act of 2017 would impose the cap on non-economic damages in states where courts have struck down such limits as unconstitutional or rejected similar legislation. 18 states do not have a cap on non-economic damages that compensate for pain and suffering. These include Georgia,
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New York, Florida and Pennsylvania. The bill applies to “health care lawsuits” and the plaintiffs bar predicted that nursing home negligence cases and medical malpractice lawsuits would be most impacted by it. The bill’s possible impact on lawsuits related to medical devices and pharmaceuticals is of great concern for plaintiff attorneys. The American Association for Justice (AAJ), the nation’s largest plaintiffs bar organization, warns that the bill could considerably impact cases involving power morcellators and transvaginal meshes, both mass torts now in various courts. Will the cap imposed have a negative impact on the ability of the layman to pursue a claim when they have been badly injured? Senior vice president for legal reform policy at the U.S. Chamber of Commerce’s Institute for Legal Reform, Matt Webb, says that the bill doesn’t contain anything that would preclude litigation against medical device manufacturers or pharmaceutical companies. The provision reads, “A health care provider who prescribes, or who dispenses pursuant to a prescription, a medical product approved, licensed, or cleared by the Food and Drug Administration shall not be named as a party to a product liability lawsuit involving such product and shall not be liable to a claimant in a class action lawsuit against the manufacturer, distributor, or seller of such product.” This means that doctors and pharmaceutical companies cannot be sued in the same lawsuit. As Sue Steinman, senior director of policy and senior counsel at the AAJ points out, there is a prohibition of class actions for pharmaceutical companies in the bill. Matt Webb pointed out that the more significant consequence of eliminating the doctor in a lawsuit is that it removes the “local” connection that plaintiff lawyers have used to retain a case in state court, which is considered a less friendly option for defendants. The bill would make it more difficult to keep the case in the state court where the doctor happens to be. Apart from the damages cap, the bill would impose a federal statute of limitations and limit attorney fees. Other features of the bill include: •
It does not prevent plaintiffs from seeking an unlimited amount of economic damages including medical costs and lost wages.
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It applies only to those cases involving medical payments made by the federal government such as Medicare or the ACA.
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The cap imposed would not pre-empt the existing damage limits in some states such as those in Texas or California even if they are more than $250,000.
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The bill was pushed through the House being approved on a narrow vote of 218 – 210, and the bill’s prospects before the Senate are uncertain. Considering the negative impact it is likely to have on consumers’ rights, and how it would allow companies and manufacturers to avoid being held accountable, plaintiff lawyers and other experts are keenly observing how the U.S. Senate will receive the bill.
www.mosmedicalrecordreview.com
(800) 670 2809