Mississippi Rep. Tommy Reynolds, a Democrat, joined the National Conference of State Legislatures Law and Criminal Justice committee co-chairmen, South Dakota Sen. Joni Cutler, a Republican, in backing a recent letter that encouraged other house leaders to express their "strong, bipartisan opposition" to federal medical malpractice reform because it would infringe upon states' rights, reports Julian Pecquet at Healthwatch. Healthwatch is touted as Capitol Hill's healthcare blog on their website.
The letter came in response to House Republicans efforts to pass a tort reform bill (H.R. 5) that would cap non-economic damages at $250,000. Non-economic damages include things like pain, suffering, emotional distress or mental anguish. Pecquet says legislators want the bill to pass "next week as a way to pay for repealing the health reform law's Medicare cost-cutting board" by stabilizing medical malpractice insurance rates.
This issue is a big deal to medical practitioners who favor the bill, especially since a study by the New England Journal of Medicine (NEJM) found that every practitioner will face at least one medical malpractice suit during their careers. Still, some are more invested than others - primarily because they are sued more than others. According to the Claims Journal, "About 19 percent of neurosurgeons and heart surgeons were sued every year, making them the most targeted specialties. Pediatricians and psychiatrists were sued the least, with only about 3 percent of them facing a claim each year."
Those who oppose the bill think that "medical malpractice, product liability and other areas of tort reform are areas of law" that should remain within the regulation by the states. The letter goes on to indicate that states have done a good job so far of dealing with the "myriad of substantive and regulatory issues regarding licensure, insurance, court procedures, victim compensation, civil liability, medical records and related matters." Federal interference, they suggest, is therefore unnecessary and furthermore "would undermine that diversity and disregard factors unique to each particular state."
Many medical malpractice attorneys would also argue that placing a cap on victims' recovery won't be a magical panacea, and instead will only result in restricting plaintiffs' access to justice. The bill is modeled after California's Medical Injury Compensation Reform Act of 1975 (MICRA), which has repeatedly been challenged and upheld as constitutional. MICRA had a similar damage cap of $250,000, as well as a cap on attorney's fees and a shortened statute of limitations (time in which one must file suit before the opportunity to do so expires). Most parts of MICRA are still in effect today, and although some would question the degree of its success, a RAND report found it actively reduced defendants' liabilities by 30 percent. Subsequently, as is evidenced by the proposal of H.R. 5, MICRA has become a model for similar legislation.
According to RAND, "awards most likely to be capped involve death cases, cases with the severest non-fatal injuries, and/or plaintiffs younger than one year." In Mississippi, passage of H.R. 5 would reduce non-economic damage caps by 50 percent. Mississippi currently has a cap of $500,000 on non-economic damages in medical malpractice cases. Miss. Code Ann. § 11-1-60.