Dead Bill Walking

On March 22, the U.S. House of Representatives passed HR-5 – the Protecting Access to Healthcare Act – by a vote of 234-173. The Act, which went strongly down the party line (only 11 democrats voted for the bill) had broad support from ACEP as well as the AMA and a range of other medical organizations.

The House just passed HR-5, a piece a healthcare reform roundly endorsed by both ACEP and the AMA. So why have the Senate and the White House sworn to kill it?

On March 22, the U.S. House of Representatives passed HR-5 – the Protecting Access to Healthcare Act – by a vote of 234-173. The Act, which went strongly down the party line (only 11 democrats voted for the bill) had broad support from ACEP as well as the AMA and a range of other medical organizations. The bill contained multiple provisions which would dramatically improve the overall practice environment of medicine, including a unique “fix” for emergency physicians and consultants in the ED. And yet, this legislation – endorsed by so many in the medical community – is doomed to die, whether on the Senate committee floor, or by the presidential pen.

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The bill contains the following key provisions:
1) Extends protections of the Federal Tort Liability program to emergency physicians and on-call specialists providing care pursuant to EMTALA-mandated care. The Federal Tort Claims Act essentially allows the federal government to hold itself responsible for tort claims arising from actions of people working as agents of the federal government.  This program currently provides medical liability protection to healthcare providers in federal healthcare programs (i.e. Indian Health Service).  For those interested in more details, I have attached a summary document on the Federal Tort Claims program.  This amendment contains the language of HR 157 which was the bill ACEP had specifically requested to be passed on this issue.

2) Grants limited civil liability protection to health care professionals assisting in a federal disaster response.

3) Provides for comprehensive liability / tort reform at the federal level. Key components of the reform are:

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• Sets a statute of limitations of three years after the date of manifestation of injury or one year after the claimant discovers the injury, with certain exceptions.
• Limits noneconomic damages to $250,000. Makes each party liable only for the amount of damages directly proportional to such party’s percentage of responsibility.
• Allows the court to restrict the payment of attorney contingency fees. Limits the fees to a decreasing percentage based on the increasing value of the amount awarded.
• Allows the introduction of collateral source benefits and the amount paid to secure such benefits as evidence. Prohibits a provider of such benefits from recovering any amount from an award in a health care lawsuit involving injury or wrongful death.
• Authorizes the award of punitive damages only where: (1) it is proven by clear and convincing evidence that a person acted with malicious intent to injure the claimant or deliberately failed to avoid unnecessary injury the claimant was substantially certain to suffer; and (2) compensatory damages are awarded. Limits punitive damages to the greater of two times the amount of economic damages or $250,000.
• Denies punitive damages in the case of products approved, cleared, or licensed by the Food and Drug Administration (FDA), or otherwise considered in compliance with FDA standards.

4) Repeals the Independent Payment Advisory Board (IPAB) established under PPACA healthcare reform law.  The IPAB is an independent appointed body that has been granted authority to limit spending increases in Medicare/Medicaid programs unless their “recommendations” are specifically changed by Congress.

As good as these provisions may sound to physicians’ ears, the Act is unlikely to even make it to a vote in the Senate. The American Association for Justice (formerly the American Trial Lawyers Association), called the bill an “obscene exercise just to score cheap political points.” Prior to passage of the bill, The White House issued a Statement of Administration Policy stating “HR-5 would repeal and dismantle the IPAB even before it has a chance to work. The bill would eliminate an important safeguard that, under current law, will help reduce the rate of Medicare cost growth responsibly while protecting Medicare beneficiaries and the traditional program. The Administration strongly opposes legislation that attempts to erode the important provisions of the Affordable Care Act.”

The White House Statement went on to attack the tort reform provisions stating “HR-5 would establish inappropriate and harmful restrictions on health care lawsuits… Specifically, the Administration opposes placing artificial caps on malpractice awards which will prevent patients and other claimants who have been wrongfully harmed from receiving just compensation.” The bottom line was that, “If the President is presented with HR-5, his senior advisors would recommend that he veto the bill.”

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So, why would the House Republican leadership go through all the time and effort to hold hearings and a vote on a bill that everyone knew would never become law? (The tort reform provisions alone were so politically one-sided that everyone knew that Democrats would have to vote against it.) The answer is politics. What the Republicans got Democrats to vote against were some provisions that were actually viable and worthwhile initiatives, including repeal of the IPAB, extension of Federal Liability Protection for ED care, and the extension of civil suit protection to healthcare professionals volunteering in a federal disaster. So, in a Presidential election year, and right on the heels of a Republican rout of the Democrats in taking back control of the U.S. House in 2010, the Republicans got to go on record as being supportive of all the provisions of the bill, and got Democrats to go on the record against them.

Conservatives will point to this as proof that the only way to achieve meaningful federal tort reform is to change the Senate and the White House. Others see this as more political posturing by both sides. Regardless, our thanks and support go out to the legislative efforts of ACEP and the AMA on passing this bill. But one thing is clear. It will take more than this political demonstration to see real reform.