THE REPUBLICAN HEALTH CARE LIABILITY REFORM PACKAGE

 Deep in the Republican Alternative Healthcare reform proposal unveiled by Rep. John Boehner (R) Ohio on November third, (The “Common sense Health Care Reform and Affordability Act,” can be found “Division C- Enacting Real Medical Liability Reform.” This section purports to nationalize state medical malpractice and medical product liability law and procedure into a uniform federal code which provides greater protection for doctors, pharmaceutical companies and medical device manufacturers.

 Section 301 euphemistically entitled “Encouraging speedy resolution of claims,” shortens the statute of limitations, the time frame in which a claimant must bring an action. In most states it is two years from date of the discovery of an actionable claim. The Republican proposal limits the time to the lesser of three years after the date of the first manifestation of the injury or one year after the plaintiff discovers or should have discovered the injury. In other words, three years after one becomes aware of the damage or one year after one becomes aware or should have become aware of a legal health care claim against a particular defendant, absent proof of fraud, intentional concealment or the presence of a scalpel or other non therapeutic foreign object left in the body.

 Limitations of actins by minors are usually tolled until after the minor reaches majority. Here the supported standard requires that an injured child (or a parent or guardian on the child’s behalf) bring an action the later of 3 years from the manifestation of the injury or before the minor’s eighth birthday. (Cause for a special celebration on the eighth birthday?  No more legal claims for your damage. Welcome to suck it up manhood?)

 The compensation to plaintiffs in “health care lawsuits” is limited to provable economic losses plus a cap of $250,000 on non-economic damages like pain and suffering.

 The proposed statute directs courts to supervise the contractual relationship between plaintiffs and their attorneys involving contingent fees “based upon the interests of justice and principles of equity.”  It sets a ceiling on contingent compensation to 1) 40% of the first $50,000; 2) a third of the next $50,000; 25% of the next $500,000; and 4) 15% of anything awarded over $600,000. Although couched in terms of maximizing patient recovery,” it seems clearly aimed at reducing an attorney’s ardor for making a big score on behalf of the patient.

 Interestingly, Sec. 304 of the proposal provides for the introduction of evidence by either party of collateral source befits, such as insurance coverage and eliminates any subrogation claims by insurance companies to any part of any award recovered by the plaintiff.  This essentially reduces the economic damages to the plaintiff to the extent that he or she is covered by insurance or other third party protection.

 Sec. 305 guts most claims for punitive damages. No claim for punitive damages may be brought in any complaint. A complaint may be amended to add a claim for punitive damages in the event the court finds that the plaintiff can make a showing of a “substantial probability that the claimant will prevail on a claim for punitive damages. In order to obtain an award of punitive damages a plaintiff must prove, by an elevated standard of “clear and convincing evidence” that the defendant acted with malicious intent to injure the patient. (“Nurse, I intend to kill this patient just for the fun of it. Scalpel please”).  There would be no more punitive damages for reckless conduct.

 Under Sec. 306, an award in excess of $50,000. will be converted at the request of any party (i.e. the defendant) into a periodic payment plan. (“Lets see, a thousand a year, plus interest over 50 years plus interest. I am sure the hospital and your other healthcare creditors will be willing to wait for their money.”)

 The Bill’s proposal applies to any “health care lawsuit,” meaning any healthcare liability claim concerning the provision of health care goods or service or any medical product affecting interstate commerce, brought in any state or federal court venue or in any arbitration or other adjudicatory proceeding.  A “medical product” means any drug, device, or biological product intended for humans. All in all a nice gesture to the health insurance, pharmaceutical and medical device industries – but then the reality. In the real political reality world where most of us operate, Reverend Al Sharpton (D) New York would have a better chance being elected Pope than this bill would have in being enacted into law.  Perhaps it should be called the “Sixth Sense Health Care Reform and Affordability Act.”