Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2005

HELP EFFICIENT, ACCESSIBLE, LOW-COST, TIMELY HEALTHCARE (HEALTH) ACT OF 2005 -- (House of Representatives - July 28, 2005)

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Ms. SCHAKOWSKY. Mr. Speaker, I rise in strong opposition to H.R. 5, the so-called HEALTH Act. The civil justice system is about giving injured consumers their day in court, allowing them the opportunity to hold wrongdoers accountable, recover damages and change dangerous behaviors. H.R. 5 is a frontal assault on those consumer rights.

H.R. 5 is a dangerous, anti-consumer bill that would impose an arbitrary ceiling $250,000--on the amount a patient injured by medical malpractice, HMO denials, nursing home abuse or defective drugs or medical devices could receive for noneconomic damages, no matter how devastating the injury. In many cases, the victim may have few out-of pocket losses, but suffer great harm. For example, an l8-year old woman who loses her ability to have a child for the rest of her life may suffer no monetary loss. Under H.R. 5, the most she could recover in a medical malpractice lawsuit would be $250,000.

Politicians should not impose arbitrary caps on non-economic damages. We are no substitute for a jury of one's peers, which has the ability to look at the facts and weigh the evidence in individual cases. There are some who say that it is appropriate to limit non-economic damages since economic damages are not capped. But non-economic damages are not ``extras,'' they are not inconsequential. Unbearable and long-term pain, loss of sight and mobility, the inability to bear children, the loss of an infant or a grandparent--these may not be as easily quantifiable as lost wages but the losses are just as real. And, for many consumers who have been injured or lost a loved one, noneconomic damages might be the only damages available.

The National Citizens' Coalition for Nursing Home Reform has provided actual histories of nursing home residents harmed by medical negligence. Frances G's physician described her as ``the victim of gross nursing home neglect. Her pressure sores and dehydration were inexcusable.'' Her nursing home was consistently understaffed, her physician's orders were repeatedly ignored, and she endured excruciating and continual pain from pressure sores but was given no pain medication. Gertrude H., according to charge nurses, was grossly neglected and suffered life-threatening pressure sores. Her physician stated that, ``I have no doubt that Gertrude experienced severe and unrelenting pain from June 27, 2000 to February 6, 2001, from the deep, eroding pressure sores.'' Because both Frances and Gertrude were senior citizens, any compensation would come in the form of non-economic damages. Do my colleagues really believe that $250,000 is ``reasonable'' compensation for Frances and Gertrude and their families?

Children are also adversely affected by caps on non-economic damages. Shannon Hughes had a long and difficult labor. The doctor was called repeatedly and finally showed up at her 35th hour of labor. At 37 hours, the doctor performed an emergency C-section. The umbilical cord was twice wrapped around the child's neck. Tyler suffered cardiac arrest for 18 minutes. As a result, Tyler, who is now 7 years old, is severely brain-damaged and bedridden. He must be turned every two hours, is fed through a tube, suffers seizures daily and is non-communicative. Shannon says, ``My son has no future but pain and suffering. No politician in Washington has the right to decide what is proper compensation for him.'' Like many parents, Shannon may need to use whatever noneconomic damages she received in order to pay for Tyler's care once her economic compensation runs out. In many instances, because of rising medical costs and new technologies, the damages awarded for medical care run out while the medical bills keep coming.

Tyler survived, but many babies do not. Where medical malpractice results in the death of a child during labor, a mother most often will not have any physical injury but only emotional distress of losing her child. In this case, under the proposal by H.R. 5, no amount of economic damages will be awarded, and the non-economic damages would be capped at $250,000.

Non-economic damage caps have a disproportionate effect on women who work inside the home, children, senior citizens, children and low wage-earners who are more likely to receive a greater percentage of their compensation in the form of non-economic damages if they are injured. But caps on damages are not the only anti-consumer provisions in this legislation.

In addition to the arbitrary ceiling on non-economic damages, H.R. 5 lets wrongdoers--those found guilty of medical malpractice--decide whether to pay damages on a periodic basis, even if the injured consumer wants and needs damages paid upfront.

H.R. 5 eliminates joint and several liability. This means that a consumer injured by more than one wrongdoer will not be fully compensated if one of those wrongdoers declares bankruptcy or cannot pay their share.

H.R. 5 eliminates the collateral source rule, which could mean that an injured consumer's health insurer--not the wrongdoer--pays the medical bill.

H.R. 5 also places limits on punitive damages, gives special protections for drug companies and medical device manufacturers, caps attorneys' fees for plaintiffs but not defendants, and shortens the statute of limitations. Finally, it includes a state preemption provision that leaves in place state laws more favorable to medical providers and organizations while overturning state laws more favorable to injured consumers.

While it is clear what H.R. 5 would do in terms of eliminating consumers' rights, it is equally clear what it won't do. No insurance company executive has yet to come forward to say that passage of H.R. 5 would reduce medical malpractice premiums. In fact, according to American Insurance Association spokesman Dennis Kelly, quoted in the January 3, 2005 Chicago Tribune, ``We have not promised price reductions with tort reform.'' The General Counsel for the American Tort Reform Association admitted that ``There is no question that it is very rare that frivolous suits are brought against doctors. They are too expensive to bring.'' (Los Angeles Times, 10/22/04).

At the same time, multiple studies have indicated that medical malpractice premiums are not connected to jury award or settlement levels. A recent analysis of the top 15 medical malpractice insurers found no rise in payouts from 2000 to 2004, at the same time that premiums doubled. Some companies significantly increased premiums while their claims actually decreased. A study by the Economic Policy Institute found that the number of tort cases fell 4 percent from 1993 to 2002 and that the real causes of higher premiums were economic factors and insurers' investment decisions.

H.R. 5 takes away consumers' rights and particularly hurts women, children and seniors, while doing nothing to help doctors with high malpractice insurance premiums. I urge my colleagues to vote ``no'' on H.R. 5.

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