H.R. 1215 : Emmer Backs States’ Rights; Lewis, Paulsen Back Trump

Healthcare was a voting subject in the Republican-controlled House today as it passed the ironically entitled H.R. 1215 Protecting Access to Care Act by a vote of 218-210 … close because 19 Republicans defied the marching orders of the Trump Administration and GOP leadership.

Protecting Access to Care Act sounds like a great bill title … as did H.R. 4600 Help Efficient, Accessible, Low cost, Timely Healthcare (HEALTH) Act Of 2002.

Yep, you read that right … 2002 … and the core of the bill is the same — medical malpractice with the goal to federalize the process and cap payments at $250,000.
Yep, in 2002, the Republican-controlled House passed the bill 217-203 only to see it die in the Senate. Notable NO votes came from Ron Paul, Jeff Flake, Peter King and Mario Diaz-Balart (funny thing is that today Representatives King and Diaz-Balart voted YES.)

Yeah … 2002 … surely, everyone remembers the Bush-Gore debates when then Texas Governor George W. Bush bragged about the work he accomplished on medical malpractice … arguing that State law should be respected and not be superseded by Federal law. That Texas law has a higher cap on punitive damages at $750,000 and no caps on non-economic damages for suits against HMOs.

Today, State legislatures dictate malpractice damages … and the $250,000 figure has been around since California enacted Medical Injury Compensation Reform Act of 1975. MICRA imposes a cap of $250,000 on all damages in malpractice cases except for the victim’s medical bills and economic losses, typically lost earnings. Everything else, such as “pain and suffering,” mental anguish and loss in quality of life, is subject to the cap.

Repeating, that $250,000 cap was set in 1975.
Because it was not indexed to inflation, in 1975 dollars it’s worth less than $58,000 today.
And today, the House passed a bill without indexing it … even though that was pointed out during a 2002 hearing by a Member of Congress who was part of the 1975 California legislature and now regrets that it was not indexed :

This bill, an effort to copy the provisions of MICRA, simply takes that $250,000, makes no allowance for the fact that it was a figure deemed to be a reasonable cap in 1975, and now imposes it in 2002, and, at least as I understand it, has no provision for future cost-of-living increases on that cap. So that’s one reason why I think going with a bill that has a cap like this is much too low, even if you accept the premise that we should cap noneconomic damages and pain and suffering recoveries in medical malpractice cases.

Surely, this is something that would have been discussed during any committee hearings on H.R. 1215 Protecting Access to Care Act … but the Republican-controlled House never held a hearing on the bill … just passing along to the full House for a vote.

It isn’t that the House didn’t have all the “facts” it needed to move forward … they pointed to a USA Today editorial, “Our View on `Defensive’ Medicine: Lawyers’ Bills Pile High, Driving Up Health Care Costs,” that hopefully everyone noted the date of the editorial — (December 29, 2008).

They also pointed to the findings from The National Commission on Fiscal Responsibility and Reform … that hopefully everyone noted was dated December 2010.

And if more “facts” were needed, there was also a citation to a survey that was conducted for the bipartisan legal reform organization “Common Good,” whose Board of Advisors included former Senator George McGovern, Eric Holder, and former Senator Paul Simon — hmmm … all Democrats … all of whom are not currently listed on the Common Good Advisory Board (but Newt Gingrich is) … oh, and the date of that survey … April 11, 2002.

“facts” or “history” …. well, if you read The Healthcare Blog, they see something else — “alternative facts” (highlights below)

To support H.R. 1215, then, one needs a host of alternative facts—a medical malpractice liability crisis that doesn’t exist, hundreds of billions of dollars in imaginary health care savings, fictional damage awards, and imaginary overcharges by plaintiffs’ attorneys.

Inconvenient facts have never stopped interest groups or politicians from making false claims about med mal litigation.

In late March of this year, JAMAInternal Medicine published a study finding that the “the overall rate of [malpractice] claims paid on behalf of physicians decreased by 55.7% from 1992 to 2014.” The finding wasn’t new. In 2013, the Journal of Empirical Legal Studies published a study co-authored by one of us (Hyman) which found that “the per-physician rate of paid med mal claims has been dropping for 20 years and in 2012 was less than half the 1992 level.” In fact, peer-reviewed journals in law and medicine have published lots of studies with similar results. It is (or should be) common knowledge that claims of an ongoing liability crisis are phony.

Other published reports echo their findings

The favorable national medical malpractice environment continued to inure to the benefit of physicians in all but a handful of states. Claim frequency overall and for physicians remains at a historic low and shows no sign of a turn for the worse. These conditions indicate general stability in the legal environment and in the market for medical professional liability insurance. These trends have favorably affected lower premiums for physicians for more than 10 years.

Yet, the Republican-controlled House saw fit to schedule a vote … well, after getting the White House to bless it.

That doesn’t mean that all Republican supporters were in agreement … as some conservative organizations objected (highlights below)

The disturbing trend toward the ‘federalization’ of state tort law that is contrary to constitutional principles and represents an undue restriction on freedom.
Regardless of the merits of this bill, it is critical to note that more than 30 states already have some form of cap on damages in such litigation, while 18 others bar such restrictions on awards either by constitutional provision or via state court decisions holding them unconstitutional.
This diversity of approach among the states, which may be viewed as inconvenient by members of Congress and special interests, IS a feature, not a bug, of our system of federalism.
Overriding state constitutional provisions and interpretation denies states and their citizens’ essential liberties as well as an important check and balance on the power of the national government: the ability to protect their interests by keeping government and the settlement of legal disputes closest to them where actions can be monitored and held accountable.

In summary, the Republican-controlled House failed to hold a hearing, offered “alternative facts” and broadly restricted the constitutional rights of all Americans to go to court.

And if that is not enough, the wording is troubling. The definitions, including “health care lawsuit” “health care provider” and “health care liability claim,” make clear that those benefiting from this legislation will be not only unsafe hospitals but also for-profit nursing homes, insurance companies that wrongly deny coverage, makers of unsafe drugs and devices, and even doctors who sexually abuse patients.

Yet, if you watched the floor debate on the bill what was alarming was the lengthy debate and roll call vote on an amendment to allow a physician to apologize to a patient for an unintended outcome without having the apology count against them in the court of law. And to require a plaintiff to provide a notice of intent to the physician 90 days before the lawsuit is filed.

Clearly, Protecting Access to Care Act was more about protecting Republican donors.

The final vote says it all … all Democrats voted NO … Tom Emmer must have heard the concerns of States’ Rights and voted NO but Jason Lewis and Erik Paulsen followed Trump orders and voted YES.

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