With little public notice this week the House Judiciary Committee in Washington DC sent to the floor a proposed law that, if enacted, will dramatically curtail the right of Oregonians to receive just compensation in medical malpractice lawsuits. As laid out in the official summary of the legislation (click here to read the full summary at the legislative-tracking website Thomas.gov) the so-called Help Efficient, Accessible, Low Cost, Timely Healthcare (HEALTH) Act of 2011 would shorten the statute of limitations for most medical malpractice cases and make it much more difficult to win punitive damages in an Oregon medical malpractice case. Any defendant who managed to win in court despite these new rules would find that the law also places severe limits on the size of the damages a court can award.
The bill, sponsored by Rep. Phil Gingrey (R-GA), was first introduced late last month as HR 5 (the Senate version of the legislation, S 218, is sponsored by Nevada Republican John Ensign). It was hustled through the House Judiciary Committee earlier this month and passed out of committee on a voice vote – a stunningly fast timeline for such potentially momentous legislation.
Two of the most telling aspects of HR 5 are clauses that would shield the pharmaceutical and medical device industries from responsibility for their actions while limiting attorney’s fees in medical malpractice and medical wrongful death suits to a level that may discourage many attorneys from taking on such cases.
The sections shielding medical companies would bar the awarding of punitive damages for any claim against a product “approved, cleared or licensed by the Food and Drug Administration” while also making it much harder to sue the doctors and other medical staff themselves. Victims would have to prove that a medical professional had acted with “malicious intent” – a standard that seems designed to be impossible to meet.
Even if someone did manage to convince a court that a doctor was trying to harm the patient (that’s basically what “malicious intent” means) the law would severely limit both the amount the victim could win, and the portion of the award that could go for attorney’s fees. In this respect, the bill seems to be modeled on legislation recently enacted in Texas which, as I wrote last December, has made it difficult for victims to find attorneys economically able to take their cases and defend them against deep-pocketed hospitals and medical companies.
The question going forward is whether we, as Americans, will allow our rights to justice and fair compensation to be taken away so easily?