Protection? Fairness? Hardly.

Protection? Fairness? Hardly.

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The American Health Care Act (aka Trumpcare or Ryancare) failed because it was patched together and would have imperiled insurance benefits for millions of the neediest Americans. Two other health care related bills – the Protecting Access to Care Act and the Fairness in Class Action Litigation Act – have made it out of the U.S. House and are currently pending in the U.S. Senate.  If passed they will produce the same abysmal result.  Like the American Health Care Act, they should be rejected.

Protection and fairness?  How could anyone be against that?  Unfortunately, the titles hide the motive of these bills: maybe cost savings and damn the public good.  These bills appear to have been written by lobbyists to protect corporate bottom lines.  Both bills will add to the substantial roadblocks injured patients already face in attempting to vindicate their rights against powerful entities and corporations in the legal system.

The Protecting Access to Care Act (H.R. 1215) is being touted as a way to control the cost of frivolous medical malpractice lawsuits.  The Act would limit medical malpractice victims’ ability to have their day in court by making certain providers immune from lawsuits and imposing strict caps on damages for victims of medical malpractice regardless of the degree of injury or the extent of negligence involved.  Some variation of this bill has been floating around Republican circles for decades.  There is no question this bill would likely reduce costs for medical providers and insurance companies, but there is every reason to believe it will do so by harming ordinary Americans.

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The key justification for this bill is that there is a substantial amount of frivolous medical malpractice litigation in the United States.  However, the leading study on this issue from The New England Journal of Medicine concluded, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”  The study noted that (1) the great majority of patients who sustain a medical injury as a result of provider negligence do not sue and (2) the majority of medical malpractice lawsuits that are brought have at least some merit.  The rate of paid medical malpractice claims in the United States has declined significantly, dropping nearly 56 percent between 1992 and 2014. Simply put, evidence of a health care system mired by frivolous litigation does not exist.  If anything, studies demonstrate that the legal system is pretty good at weeding out unmeritorious claims.  This law won’t do better.  There is simply no need for this legislation.

Ordinary Americans would also be wise to keep their eyes on the Fairness in Class Action Litigation Act (H.R. 985).  This Act would significantly impact consumers’ ability to fight corporate wrongdoing in court.  For example, one of the only ways that drug purchasers can combat rising drug prices is through class action claims targeted at anticompetitive practices by big pharmaceutical companies.  But the Fairness in Class Action Litigation Act imposes strict one-size-fits-all requirements on top of the extraordinarily complex procedural hurdles that already exist for those litigating these cases.  This is why the rule making body of the U.S. federal courts and the American Bar Association both weighed in against this Act stating their belief that existing rules get the job done.  Indeed, working with the rules that we already have has also been endorsed by the newest Supreme Court member Neil Gorsuch who stated during his confirmation hearings that these complex cases require a close look at the facts presented.

It is not only political moderates that have staked out their opposition to the bill.  So have those in the Tea Party via the House Liberty Caucus.  In a policy statement the House Liberty Caucus urged its members to vote against the Fairness in Class Action Litigation Act stating that class actions “are a preferable alternative to government regulation because they impose damages only on bad actors rather than imposing compliance costs on entire industries.”

If the failure of the American Health Care Act has taught us anything, it should be that blunt attempts to control costs are short-sighted and do a disservice to consumers’ health and well-being.  Hopefully, the U.S. Senate will determine that these bills are similarly flawed and encourage a more nuanced approach to controlling the costs of health care related litigation.

Arthur Caplan, Division of Medical Ethics, NYU SOM
Zachary Caplan, Antitrust Attorney, Berger & Montague, P.C.

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