Bill to Limit Patients’ Rights, Not Insurance Company Rates, Passes House

Santa Monica, CA — Congress passed legislation (HR 5) today that would dramatically limit the rights of patients injured by medical malpractice, without endorsing any provisions that mandate lower malpractice insurance rates for physicians. The bill pre-empts state laws and denies juries the right to provide full compensation to injured victims. Supporters of the bill point to California as the model for the legislation, but the majority of California lawmakers opposed the bill, noting that the provisions of HR 5 do not contain key elements of California law that have actually worked to protect doctors, namely the insurance reforms associated with Proposition 103, which was enacted in 1988.

“The Republican sponsors of this bill have trounced on states’ rights in order to pass legislation that limits patients’ rights but does nothing to limit insurance companies’ rates,” said Douglas Heller, a consumer advocate with the Foundation for Taxpayer and Consumer Rights (FTCR) of California. “Malpractice caps never lowered doctors’ premiums. Only when California imposed strict insurance regulation did physicians see relief. Today’s legislation will line the pockets of insurance companies, but it will not lower insurance rates for doctors.”

According to FTCR, the Republican sponsors of HR 5 fabricated information in order to pass the legislation.

Representative James Greenwood (R-Pa.), the bill author, lied to Congress and the public when he referred to a California family who allegedly received a $42 million award after their son was injured as a result of medical malpractice. In truth, California’s cap on non-economic damages ensured that the family of Steven Olsen, to whom Rep. Greenwood was referring, received dramatically less. Furthermore, the source of this false information, the American Medical Association, removed the $42 million story from its website in February after the group was confronted with the facts of the Olsen case.

As New Jersey’s Star-Ledger reported on February 18, 2003: “The doctors have railed about a $42 million California jury award to a 2-year-old child. But the child’s family settled for far less — $2 million from one defendant, $1.9 million from another, minus $914,000 in legal costs. That money is for a child who once was healthy but is now blind, has cerebral palsy and a host of other problems. The malpractice suit said the child had an injury that might have been treated successfully had doctors performed a CAT scan on any of the three occasions the parents begged them for the examination, even as their son got worse.”

“The supporters of liability caps do not have enough facts to make their arguments, so they turn to lies,” said Douglas Heller, a consumer advocate with the Foundation for Taxpayer and Consumer Rights (FTCR). “The facts don’t support claims of skyrocketing jury awards or that caps will lower malpractice premiums — but the Republicans strategy has been to tell a lie enough times that it seems to become a truth.”

Representative Christopher Cox (R) of California told Congress that average malpractice verdicts have increased dramatically in recent years. In fact, the New York Times reported on January 17, 2003 that, according to the National Physicians Data Bank, average malpractice judgments increased by only 8.5% between 1996 and 1999, only 2.5% when adjusted for inflation. Supporters contend that multi-million dollar verdicts are at the heart of the current “crisis,” but the Data Bank reports that the average judgment is $426,247, up just 5.3% over the last decade.

Rep. Cox also claimed that, “California no longer suffers from the flight of doctors.” Cox ignores a recent California Medical Association (CMA) study which reported that California doctors are leaving medical practice at an unprecedented rate, regardless of the state’s damage cap. According to the July 2001 CMA report, entitled “And Then There Were None”:

• 43% of surveyed California physicians plan to leave medical practice by 2004. Another 12% will reduce their time spent in patient care.
  

• Seventy-five percent of physicians have become less satisfied with medical practice in the past five years.

The bill passed the House 229 to 196.