Is Congress protecting or punishing access to safe health care?
How would it feel, while filling out the usual paperwork in the waiting room, to sign a waiver that you won’t sue your doctor? Under a pair of bills recently introduced by Republicans in the U.S. House, that is what would happen without your knowledge or consent.
Under H.R.1215, a benevolent-sounding bill titled: “Protecting Access to Care Act of 2017,” and Title V of H.R. 277: “Reforming Medical Liability Law,” patients would surrender even more rights than they have already have under state law.
Under the proposed bills, patients would be required to submit their case to a panel of three doctors. That panel would decide whether the doctor’s conduct complied with certain professional rules. If the panel determined that the rules of practice were followed, the case would be dismissed, unless the patient could overcome the finding by “clear and convincing evidence,” an onerous burden of proof.
If the patient were able to overcome the panel’s finding, then the case could proceed to a jury trial, but the panel’s adverse findings would be presented to the jury.
The legislation would trump state laws where they are in conflict and defer to state laws that are more restrictive.
In 2016, over 400,000 patients died from medical errors, while 40,000 people were killed in car crashes.
Today the Montana Medical Legal Panel screens all malpractice claims before a lawsuit is filed in state District Court. The panel consists of three lawyers and three doctors. A new panel is selected for each case. The doctors are chosen from the same specialty area as the defendant doctor. The lawyers typically follow the lead of the doctors. The proceedings at the panel are confidential, no transcript is made, and the decision is not binding or admissible in court. The proposed bills would change all of that—the findings would be binding and admissible in court.
Most of the decisions of the Montana panel favor the doctor. The purpose of the panel is to weed out frivolous claims. In 2015, the panel recorded 114 claims, only 52 went to a hearing, and of those, only three went on to a lawsuit. In the past decade, 18 cases have gone to trial. Only two have resulted in verdicts in favor of the patient.
In recent years, the Montana Legislature has enacted many more laws that restrict a patient’s rights of recovery. In other words, it is already an uphill battle to sue for medical malpractice in Montana. So why should the feds pile on more regulations? Isn’t Congress “punishing” access to affordable health care, rather than “protecting” such a right? Who will hold doctors accountable for their errors? Conservatives promised to cut federal regulations and to return power to the states. Isn’t tort reform at the federal level the height of hypocrisy? Tell Congress we have enough rules and regulations and to stay out of our business. Piling on regulations that are more restrictive than those we already have in Montana erodes our right to full legal redress.
Steve Harman practices law in Billings