Part of the Trump/Ryan health care bill that was pulled from the House for lack of votes, included some draconian provisions that would have made medical malpractice cases much for difficult to bring. Among other things, it would have imposed a “cap” on non-economic damages that would have limited such damages to $250,000, and also imposed limits on attorney fees that would mean lower fees on larger settlements or verdicts.
In other words, it would impose a sliding scale in which fees could be a fixed percent of the first $100,000, a smaller percent of the next $100,000, etc. The larger amounts would be limited to a 15% attorneys fee. Of course, the proposed law imposes no limits on the amounts defense attorneys could earn in resisting meritorious claims. Put another way, it would not cap what insurance companies can pay to fight the claims while, at the same time, limiting what a claimant can pay to fight for his rights.
It is hypocritical that Republicans, who believe in a free-market economy, would favor federal intrusion into what a willing client can pay his or her attorney to bring a medical malpractice lawsuit. It is also hypocritical that those who favor states’ rights, as most Republicans do, abandon those principles when it comes to medical legal cases. Tort law has been a state law prerogative from the beginning of our nation. Of course, the push to limit medical negligence cases has nothing to do with principle. It has everything to do with the power of the medical industry and the insurance carriers to limit the ability of an individual who is injured through medical negligence to seek redress through our justice system.
In practical terms, if the new law passed it would probably shut down most malpractice cases. The cases are extremely difficult as it is, with only a small percentage prevailing at trial. The costs needed to mount a serious case are such that few attorneys will bring them. The defendant hospitals and physicians have always been able to out-spend the claimants, and under the new law they can use that ability even more since the claimants’ attorneys could not get paid enough to justify the resources, including time and money, needed to bring a claim.
The new Secretary of Health and Human Services, former Representative Tom Price, is a physician who has fought for many years to restrict the legal rights of patients. We should assume that this fight will continue as long as he is in that position and the Republicans control the government.
