May 5, 2006
S. 22: "Medical Care Access Protection Act of 2006"
The text of the Senate bill is now available.
What it does, in short and occasionally oversimplified form:
- Imposes a statute of limitations of either three years after "manifestation of injury" or one year after either actual or constructive discovery of the injury, whichever is first (with exceptions for fraud, intentional concealment, or Bad Things left in the plaintiff's body;
- Explicitly requires Rule 11 sanctions in med mal cases to include attorney fees;
- Caps noneconomic damages at $250K per provider and institution (edit: with a $250K limit on damages versus providers no matter how many and $500K versus institutions no matter how many), and overall to $750K (not $500K, as I previously had it) (and bars the jury from being informed of the caps);
- Requires proof by clear and convincing evidence (using enumerated factors and  a showing of either malice or something like reckless indifference)) to obtain punitive damages, and caps them at double compensatories or $250K, whichever is greater;
- Requires (for judgments over $50K) structured payouts (edit: to be available on request);
- Eliminates joint & several liability;
- Eliminates the collateral source rule;
- Limits contingent fee percentages on a sliding scale, starting with a maximum of 40 percent and ending at 15% for any damages over $600,000;
- Limits expert witnesses to (more or less) physicians in the same specialty;
- Immunizes in products suits physicians prescribing FDA-approved drugs for approved indications (note that this will, if adopted, make many more pharma suits removable and will probably result in many more sales reps and other random nondiverse parties being added to avoid diversity); and
- Attempts to avoid or mitigate obvious federalism concerns by disavowing preemptive effects in certain categories.
This was a quickly-done list; corrections and additions are welcome. (Some from the comments are reflected above.)
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Caps non-economics to $250K for providers - regardless of the number of providers.
Caps non-economics at $250K per institution with a cumulative limit of $500K
Total cumulative cap is $750K, but this is only reached if there is one or more provider and more than one institution.
Posted by: Seth (not a lawyer) | May 5, 2006 1:18:21 PM
Also, I believe punitives require a show of malicious intent. I don't know if this is different from what is normal in tort law, but it seems strange to me that punitive damages cannot be applied to gross negligence, even if the defendant is a repeat offender.
Posted by: Seth (not a lawyer) | May 5, 2006 1:21:43 PM
Also, it doesn't "require" structured payments, it requires them if any party requests them. Now, one could argue that that will be "always", but it's not a strict requirement of the law.
Posted by: Seth (not a lawyer) | May 5, 2006 1:23:38 PM
Thanks for the comments.
- You're right on noncompensatory damages.
- On punitives, there are two states of mind on which punitives can be awarded -- the plaintiff has to show (by clear and convincing evidence) that "such person acted with malicious intent to injure the claimant, or that such person deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer." The latter is not dramatically different than some definitions of gross negligence, and I think the difference is unlikely to make a substantial difference in jury instructions.
- You're also right on the structured payments. It requires them to be available.
I'll edit the post to make the two corrections and note the discussion in the comments.
Posted by: Bill Childs | May 5, 2006 4:57:52 PM
Thanks for the clarification on the punitives stuff. I don't have a very good grasp of the real distinctions between gross negligence, willful misconduct, malicious intent, etc. It seems like they all sort of bleed together. But, as always, I'm not a lawyer, so what do I know?
Another, perhaps side issue - why did Santorum introduce S. 23 when S. 22 is inclusive of it? I understand there's a claim that obstetric services are being disrupted by this or that, but it seems to me, with the usual caveat, that one could make a 14th amendment objection along the lines of "S. 23 creates a gender test for recovery".
Whatever one thinks of the the merits of S. 22, S. 23 seems to be a political move and little else.
Posted by: Seth (not a lawyer) | May 5, 2006 5:40:25 PM