Tuesday, February 28, 2017

CONYERS: Statement In Opposition to H.R. 1215, the So-Called “Protecting Access to Care Act of 2017”

Dean of the U.S. House
of Representatives
John Conyers, Jr.
Today’s markup of H.R. 1215, the so-called “Protecting Access to Care Act of 2017,” is the twelfth time since 1995 that we have considered legislation intended to deny victims of medical malpractice and defective medical products the ability to be made whole and to hold wrongdoers accountable.

This measure has repeatedly failed because of its many problems, including its trampling of states’ rights. But the Majority is now rushing it to markup as part of their chaotic attempt to repeal the Affordable Care Act - even though it will directly impede Americans’ access to safe quality medical care. 

There are so many problems with this bill that I would need 5 hours to discuss them all, but because I have only 5 minutes, here are just a few.

To begin with, H.R. 1215 like so many other civil justice bills we have considered – deeply intrudes on state sovereignty.

Tort law is supposed to be the domain of states. Yet this bill preempts medical malpractice and product liability law in many states. In particular, H.R. 1215 preempts state law governing joint and several liability, the availability of damages, the ability to introduce evidence of collateral source benefits, attorneys’ fees, and periodic payments of future damages. 

Members should not be fooled by assertions that the bill preserves state law.  In truth, H.R. 1215 does nothing to address the fundamental concerns about states’ rights previously raised by Members on both sides of the aisle as it intrudes just as deeply as its predecessor bills into areas traditionally determined by the states.

In fact, the rule of construction expressly states that it preempts state law except in very limited circumstances where state law is more favorable to defendants.  And a number of so-called “state flexibility” provisions simply reinforce one-way preemption where the bill supersedes state laws that are generally more favorable to victims, while leaving intact State laws that are more favorable to defendants.

Further yet, this bill would cause real harm by severely limiting the ability of victims to be made whole.

For instance, it imposes an unjustifiably low cap on noneconomic damages.

The bill’s $250,000 aggregate limit for noneconomic damages -- an amount established more than 40 years ago pursuant to a California statute -- would have a particularly adverse impact on women, children, the poor, and other vulnerable members of society.

These groups are more likely to receive noneconomic damages in health care cases because they are less able to establish lost wages and other economic losses. 

Women, for example, are often paid at a lower rate than men, even for the same job, and are also more likely to suffer noneconomic loss, such as disfigurement or loss of fertility.

Imposing a severe limit on noneconomic damages, therefore, hurts them disproportionately.

Whatever the short term savings, the bill would impose broad social and financial costs in the long term, including the additional strains on Medicare, Medicaid, and other government programs caused when malpractice victims are denied full restitution.

Finally, the bill unjustifiably provides blanket immunity for health care providers in medical product liability cases.

It is hard to know why a provider should be entitled to blanket immunity for dispensing a defective or dangerous pharmaceutical or medical device.

This provision also has the potential to indirectly shield pharmaceutical and device manufacturers, who may be able to argue successfully in a product liability action that a plaintiff’s injury can be blamed on a provider’s negligence.

Because the provider would be immunized, the injured victim could be left without any recovery.

The law should not be used to create such an unjust result.

For these and many other reasons, I strongly oppose H.R. 1215 and urge the Committee to reject it.

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