Legal Review: House Bill Proposes to Cap Non-Economic Damages

By medical malpractice attorney John Fisher, who practices in New York State with John H. Fisher, P.C.

A bill passed by the House of Representatives proposes to seriously curtail the ability of injured individuals to obtain non-economic damages in medical malpractice lawsuits, among other things.

The bill, proposed by Rep. Steve King (R), Iowa, covers any medical procedure that results in harm to an individual where the Federal government made payment either in the form of Medicare or Medicaid coverage, or through subsidy or tax benefit.

As the Affordable Care Act provides subsidies for all that qualify, the pool of individuals that would be affected by this change is both quite large and generally made up of lower-income, poor, and elderly individuals.

The stated goal is to reduce the amount paid out by the Federal government for unnecessary treatments that are only ordered by doctors to ensure they are not held liable for medical malpractice. King also claims that these changes will reduce doctor malpractice insurance premiums by up to 50 percent.

The bill puts limits on how much an attorney can receive in contingency fees, and reduces the statute of limitations to either three years from the date of the service that caused the injury or one year from the date the patient discovers the injury, whichever occurs first.

“Frivolous lawsuits are an unfortunate fact of life in all areas of the law,” said John Fisher, a medical malpractice attorney with the law firm of John H. Fisher, P.C. “However, judges and juries are normally pretty good at sniffing out the ones that lack good basis, and the attorneys representing the doctors are not slouches either. This law is trying to address the spiraling costs of healthcare by limiting the rights of consumers.”

The primary limitation, however, is the limit on non-economic damages.

Non-economic damages are subjective, non-monetary losses such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and loss of enjoyment of life. These damages are capped at $250,000.

“Two hundred fifty thousand dollars sounds like a lot of money,” said Fisher, “but non-economic damages are the funds that are most often used, for example to improve the life of a severely injured child by allowing access to programs and activities that they would otherwise not be able to afford. Why should that child not be able to enjoy life as fully as possible because of the negligence of a doctor?”

Most stakeholders in the medical malpractice realm agree that outrageously large non-economic damage awards are of no benefit to anyone, as they are very rarely upheld, explained Fisher.  “Unfortunately, they become the posters for tort reform, and eventually only harm consumers.”

Currently, the bill has been referred to Committee, meaning that for the time being, no changes have become law.