October 6, 2011
Rep. Jeb Hensarling, Co-Chair Sen. Patty Murray, Co-Chair Joint Select Committee on Deficit Reduction
CONSUMER AND PATIENT SAFETY GROUPS STRONGLY OPPOSE INCLUDING ANTI-PATIENT MEDICAL LIABILITY LIMITS IN YOUR FORTHCOMING DEFICIT REDUCTION RECOMMENDATIONS
Dear Co-Chairs Murray and Hensarling:
The undersigned consumer and patient-safety groups strongly oppose including restrictions on patients’ legal rights in your deficit reduction recommendations. That would include provisions like those embodied in H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2011 and in recommendation 3.3.12 of the report by the National Commission on Fiscal Responsibility and Reform (Bowles-Simpson Commission). Such legal limits would not only severely harm already injured patients, but would also increase the deficit in significant ways. Moreover, imposing federal malpractice laws on all 50 states would be an unprecedented interference with states and the work of local judges and juries.
Even if H.R. 5’s provisions applied only to doctors and hospitals,1 the Congressional Budget Office (CBO) believes they would save no more than 0.4 percent in health care costs, which is likely a significant overestimate.2 At the same time, CBO admits that the U.S. death rate could increase by 0.2 percent, killing another 4,000 people each year.3 But CBO and the Bowles- Simpson Commission failed to consider new financial burdens on the government should these laws pass:
New Burdens on Medicaid and Medicare. If a patient is brain damaged, mutilated or rendered paraplegic as a result of the medical negligence but cannot obtain compensation from the culpable party through the tort system, he or she may be forced to turn elsewhere for compensation, typically taxpayer-funded programs such as Medicaid and Medicare. None of these increased Medicaid costs are considered.
Liens and Subrogation. Following a successful medical malpractice lawsuit, Medicare and Medicaid can both claim either liens or subrogation interests in the patient’s recovery, reimbursing the government for some of the patient’s health care expenditures. Without the lawsuit, Medicare and Medicaid will lose funds that the government would otherwise be able to recoup.
Patient Safety. Provisions that would restrict the health care industry’s liability would weaken the deterrent potential of the tort system (which even CBO acknowledges but does not consider in its cost calculations), leading to less accountable and more unsafe
1 H.R. 5’s provisions are not limited to doctors and hospitals. In fact, H.R. 5 is so broadly drafted that it would also limit remedies against the for-profit nursing home, insurance, and pharmaceutical industries. 2 http://www.cbo.gov/ftpdocs/106xx/doc10641/10-09-Tort_Reform.pdf. 3 Id.hospitals, and with accompanying increases in cost and physician utilization inherent in
caring for newly maimed patients.
Joint-and-several liability. According to CBO, modifying joint and several liability
“may increase the volume and intensity of physician services.”4 In other words, this change could cause a deficit increase, not decrease.
The policies in H.R. 5 and the Bowles-Simpson recommendations explicitly preempt state law, denying states the freedom to create their own approach to malpractice liability and to decide what is in the best interests of the people in their states.
In sum, your committee should focus on reducing the deficit, not on increasing the burdens on taxpayers, encroaching on states’ rights, and insulating negligent providers from accountability. We strongly urge your committee to exclude medical liability restrictions from your forthcoming deficit reduction recommendations.
Alliance for Justice
Alliance for Safety Awareness for Patients (ASAP)
Center for Justice & Democracy
Compassion & Choices
Connecticut Center for Patient Safety
Consumers Advancing Patient Safety (CAPS)
Mothers Against Medical Error
MRSA Survivors Network
New Hampshire Patient Voices
Patient Safety America
Sepsis Alliance South Carolina
Voices for Patient Safety (SCVPS)
The Coalition for Patient's Rights
The Empowered Patient Coalition
The National Consumer
Voice for Quality Long-Term Care
cc: Sen. Max Baucus Rep. Xavier Becerra Rep. Dave Camp
4 Center for Justice & Democracy, TELLING THE TRUTH ABOUT MEDICAL MALPRACTICE: A “RETORT” TO THE NATIONAL COMMISSION ON FISCAL RESPONSIBILITY AND REFORM REPORT, “THE MOMENT OF TRUTH”, December 2010, available at http://centerjd.org/archives/issuesfacts/DeficitAnalysisF.pdf.
Rep. Jim Clyburn Sen. John Kerry Sen. Jon Kyl Sen. Rob Portman Sen. Pat Toomey Rep. Fred Upton Rep. Chris Van Hollen