Tomorrow, the U.S. House of Representatives will vote on H.R. 5, the deceptively-named “Protecting Access to Healthcare Act” (The PATH Act).  Unfortunately, it will pass.

Should this bill become law, it would “protect” at-fault healthcare providers, drug companies and their insurers from responsibility, by drastically limiting the rights of patients injured by medical malpractice, unsafe drugs, medical devices and nursing home care.  Among other broad “reforms,” H.R. 5 would establish a permanent $250,000 cap on non-economic damages (e.g., pain and suffering) on all medical negligence cases.

As we know too well in California, such damage caps can do the most harm to patients who have been injured the worst – those that have been permanently and catastrophically injured by the culpable conduct of their healthcare provider.  These patients can be compensated for their suffering no more than significantly less injured patients.  And when the risk of a large judgment is removed, so is a strong motive for the provider to use due care.

The Center for Justice and Democracy has written a compelling letter to the House against the bill, outlining the damages cap issue and other flaws; it is available Here.

This article in the Huffington Post describes the bill’s discriminatory impact on women.

The full text of H.R. 5 can be found Here.

The bill’s many flaws were no doubt exacerbated by its rush to the floor without thorough vetting.  But given the political mechanics of the House, it appears that there are simply not enough votes to defeat H.R. 5.  Still, it must pass the Senate in some form, and a strong opposition in the House could deprive the bill of momentum, and convince lawmakers to think take a second look at the bill before casting an “Aye.”

The Obama Administration’s official Statement of Administration Policy on H.R. 5 – released earlier today –  indicates that the President’s “senior advisors” would recommend a veto, should the bill pass both houses of the legislature.  The Administration takes particular issue with the bill’s egregious damages caps.  From the Administration’s Statement:

[T]he Administration has serious concerns with key aspects of medical malpractice provisions included in H.R. 5. The goals of medical malpractice reform should be to provide fair and prompt compensation to patients who have been harmed by medical negligence, reduce preventable injuries, improve the quality of care, reduce defensive medicine, and lower medical liability premiums. However, H.R. 5 would establish inappropriate and harmful restrictions on health care lawsuits without effectively meeting these goals. Specifically, the Administration opposes placing artificial caps on malpractice awards which will prevent patients and other claimants who have been wrongfully harmed from receiving just compensation.

Hopefully, the fight over H.R. 5 will not come so close as to require a presidential veto.  While the above statement is promising, the President himself has not yet taken a position.  Call your legislator.  Let them know that the way to reform healthcare is not to harm those wrongfully and significantly injured by those to whom they entrusted their health.  The phone number for the Capitol Switchboard is 202-224-3121.

Update:  H.R. 5 did pass the House 223 to 181.

For more information, or if you or a loved one have been injured in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

0

With the advent of convenience store clinics and big-box docs, as written about in this article in the San Diego Union Tribune, there is a need for consumers to be very much on their toes, especially if symptoms do not get better quickly. Patients would be best advised to get second opinions or emergency treatment fast in those situations. All doctors are held to particular standards of care, and often speed does not equal quality. A one-stop shopping approach to health care may help for on-the-go convenience, but is not necessarily the best. This is particularly so if the ailment does not meet a standard profile, or the attention of a specialist is required.

The law in California is that physicians who elect to treat a patient even though the patient should have been referred to a specialist will be held to the standard of care of that specialist.  If the physician meets the higher standard of care, he or she is not negligent. (Simone v. Sabo (1951) 37 Cal.2d 253, 257 [231 P.2d 19].) This is a difficult standard to meet and general practitioners often have trouble meeting it. There should and will be times these convenience docs cannot treat the condition and refer the patient to someone working in the specialty field – cardiology, ophthalmology, dermatology, etc. While this blog is not meant to criticize the credentials of doctors working in these ‘faster, cheaper’ venues, this is just a general caution that health should never be taken lightly and while some illnesses can be addressed by over-the-counter, pharmacist or quick doc advice, if the problems persist or progress, the safest approach would be to get other medical help immediately.

0