A recent column in the Capitol Hill newspaper Roll Call highlights a potentially serious attack on patients rights here in Oregon and elsewhere, one that has received relatively little notice in the months since the new Congress convened.
The focus of the piece is HR 5. Formally titled the Help Efficient, Accessible, Low-Cost, Timely Healthcare Act (i.e. the “HEALTH Act”), it is billed as a centerpiece of Republican efforts to repeal and replace the health care reform act passed by President Barack Obama and the Democrats last year. According to the federal government’s legislative bill-tracking service, Thomas.gov, the bill is co-sponsored by about half of all the Republicans in the House. Among Oregon’s congressional delegation only Rep. Greg Walden, whose district covers much of rural eastern and central Oregon, is a co-sponsor.
The official summary says that the bill “sets conditions for lawsuits arising from health care liability claims.” In particular, it establishes a three-year statute of limitations for most health-care related injuries. In addition, the bill “limits noneconomic damages to $250,000 (and) makes each party liable only for the amount of damages directly proportional to such party’s percentage of responsibility.” It also forbids the awarding of punitive damages “in the case of products approved, cleared or licensed” by the federal Food and Drug Administration (FDA).
In practical terms what does all of that mean for personal injury and medical malpractice victims here in Oregon? The most important effect of the bill would be to sweep away state law where medical malpractice and patients rights are concerned. As the Roll Call column notes, these matters have traditionally been left to the states (making it somewhat ironic that among HR 5’s sponsors are many of Congress’ most vocal defenders of states’ rights). It would, in effect, replace decades of carefully considered state law on Oregon product liability, medical malpractice and patients’ rights with a national, one-size-fits-all, approach.
From a Portland personal injury lawyer’s perspective, this legislation deserves closer public scrutiny. The effect on victims seeking justice for a medical malpractice claim or severe brain injury here in Oregon could be devastating – shifting the scales of justice decisively in favor of large companies or irresponsible players within the health care system. It is particularly worrisome that the legislation would, in effect, provide blanket immunity from lawsuits to any product or drug approved by the FDA regardless of the circumstances of the product’s failure or the nature of the damage it caused. Clients should know, however, that Oregon’s medical malpractice, traumatic brain injury and personal injury attorneys will be here to defend them, regardless of what happens in Washington DC.