The U.S. House of Representatives recently passed the so-called “Help Efficient, Accessible, Low Cost, Timely, Health Care (HEALTH) Act of 2011” (“H.R. 5”). If passed into law, this H.R. 5 bill would take away the rights of injured patients by capping all compensatory damage awards for pain and suffering in medical malpractice cases to $250,000. The bill also would severely restrict patients’ ability to seek redress against drug companies and medical product manufacturers who profit from the manufacture and sale of dangerous and defective products and medications.
Our law generally provides for compensatory awards, otherwise known as non-economic damages, to compensate injured patients for the suffering caused by their injuries, such as loss of sight or paralysis. If imposed, the cap would apply to injured children as well as adults, and would be imposed regardless of the extent of harm or disability imposed.
The one-size-fits-all cap imposed by the H.R. 5 bill would remove any incentive to improve patient safety and would leave people at greater risk for injuries due to negligent care. According to the Institute of Medicine (IOM), preventable medical errors kill as many as 98,000 people per year at a cost of $29 billion. If the Center for Disease Control classified medical errors as a category, it would be the sixth leading cause of death, killing more people annually than auto accidents or guns.
Opposition to the pending H.R. 5 has ranged from patient safety groups to conservative scholars who have opposed the bill on the grounds that it would violate both the 7th (right to jury trial) and the 10th (states’ rights) Amendments to the Constitution. The civil justice system not only provides patients with their constitutional right to seek restitution for their injuries, it also encourages patient safety systems that work to protect patients from preventable harm. States with the most aggressive legislation restricting patient access to the legal system are also the states that have scored lowest on patient safety. Tort reform measures, such as those proposed by H.R. 5, would serve only to protect negligent health providers at the expense of injured patients.