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House Republicans Could Approve Measure to Limit Compensation for Injured Patients

In February, the House Judiciary Committee passed the “Protecting Access to Care Act of 2017” (H.R. 1215), a bill that would make it harder for people to win cases for injuries caused by medical malpractice. The bill’s proponents argue that current medical malpractice laws drive up healthcare costs, force hospitals to provide unnecessary care, and prevent doctors from providing quality care. However, not only are those claims incorrect, this perspective ignores the important role that our current laws play in keeping the massive healthcare and pharmaceutical industries accountable for their actions and providing fair compensation for those who have suffered horrible emotional and physical injury.

H.R. 1215 was modeled on California’s Medical Injury Compensation Reform Act (MICRA). MICRA set an arbitrary $250,000 cap on noneconomic damages, which compensate victims for injuries whose value is hard to quantify such as loss of limb or sight, severe or permanent disfigurement, pain and suffering due to the death of a child. These caps disproportionately affect women, children, and individuals with disabilities who may not lose substantial income over the course of their life due to injury but that nonetheless have suffered terribly.

California Governor Jerry Brown, who signed the law in 1975, later opposed the law after witnessing its effects. When asked in 1993 whether MICRA should be incorporated into the proposed Clinton health plan, he said, “[MICRA] has not lowered healthcare costs, only enriched insurers and placed negligent or incompetent physicians outside the reach of judicial accountability.”

Like California’s law, H.R. 1215 places an arbitrary $250,000 cap on a victim’s noneconomic damages — without even adjusting the amount for inflation! This extremely low cap runs the risk of leaving victims of malpractice without fair compensation for their injuries. The bill also provides broad immunity from liability for doctors, pharmacists, nursing homes, and others in the healthcare industry for their negligent actions.

Unfortunately, during debate in the House Judiciary Committee, Republican members voted against every amendment that was offered by Democrats that fought to place patient’s rights over profits. Ultimately, the Committee voted to advance the bill to the entire House of Representatives for consideration.

Although Republicans argue that medical malpractice lawsuits are an expensive burden on healthcare spending, a recently published report by Public Citizen found that medical malpractice made up only 0.2 percent of hospital and physician services costs and 0.1 percent of all healthcare costs in 2015. Additionally, a study by Northwestern University and the University of Illinois found that implementing a cap on damages had no impact on hospital-based spending and actually caused a 4-5 percent increase in physician-service spending. Thus, medical malpractice suits make up very little of overall healthcare spending and a cap on damages would raise costs rather than lower them.

Astonishingly, up to 400,000 people a year die due to medical error — the third-leading cause of death in America. However, holding health care professionals responsible for negligent behavior has a positive impact on decreasing medical errors according to a 2015 report by Public Citizen. The report found that hospitals that implemented new safety initiatives to improve patient safety were successful in lowering the rates of birth-related injury. These life-saving changes occurred because there was a liability system in place that held hospitals accountable for malpractice.

Under H.R. 1215 our current liability system would be dismantled, eliminating accountability and putting patients at risk.  Medical malpractice “reform” measures, like H.R. 1215, are a significant threat to patients and Congress should be working to establish stricter public safeguards rather than weakening our system.

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Can Congress Measure the Cost of a Child’s Life?

Product safety advocates led by the Consumer Federation of America held a briefing recently on the importance of regulations for consumer product safety. The briefing was in response to a hearing held by the Senate Commerce, Science and Transportation committee during which the Republican majority argued in favor of eliminating public safeguards. Three families whose children were the victims of unsafe products spoke at the briefing to urge Congress to create stronger regulations rather than eliminate critical existing safety standards which would endanger the lives of children across the country.

Products such as cribs, supplemental mattresses used in cribs and play yards, and window coverings with cords have killed and injured children and will continue to do so unless the federal government writes, implements and maintains strict product safety requirements. The recent briefing highlighted the horrific results for families when faced with unsafe products.

Under the authority of The Consumer Product Safety Improvement Act, the Consumer Product Safety Commission (CPSC) has implemented the strongest crib standards in the world and if these regulations were eliminated, companies would be able to sell faulty cribs without the government being able to step in and protect kids’ lives. Panelist Andrew Hartung, whose child was injured due to a faulty crib, said he was initially told by the company that it was an isolated incident. Upon later investigation, it was revealed that the company received numerous reports of their cribs breaking and injuring children and the item was later recalled by the CPSC.

Some rules are still in the works, though. Today, supplemental mattresses for play yards are still sold despite the danger they impose for children. Amazon and Walmart continue to sell supplemental mattresses while selling the accompanying play yards which include warning labels of the dangers of supplemental mattresses. In 2014 the CPSC found that there were 11,900 estimated injuries from cribs and mattresses and from 2011-2013 there were 108 deaths associated with cribs and mattresses. Additionally, the Consumer Federation of America found that at least 15 children died specifically from supplemental mattresses from 2000-2013. Panelist Joyce Davis, whose child died from an unsafe supplemental mattress, called for a nationwide ban to ensure that no companies would be able to sell them to unsuspecting families.

Window coverings that use cords have also been responsible for the deaths of many children across the country. According to the CPSC, almost 1 child a month dies from window covering cords. Despite the fact that they are known to increase the risk of strangulation among children, window coverings with cords are still sold by companies. Panelist Timothy Frink, whose granddaughter was a victim of a corded window covering, argued that “no business has the right to sell a product that can kill children and destroy their families.” Frink, a lifelong Republican, urged Congress to implement stricter regulation of unsafe products.

The CPSC has taken steps to solve this issue with its efforts to increase awareness of the strangulation risks associated with window covering cords and has begun a rulemaking process to consider a ban on corded window coverings. A study recently published by the CPSC found that parents generally are not informed about the magnitude of the danger that cords impose and do not install proper safety devices that could decrease certain incidents. The study stated that in order to effectively reduce the hazardous impact of window covering cords, these cords should be eliminated entirely. The study concluded that significant differences in deaths and injuries will only be apparent once cordless blinds are required moving forward.

Unfortunately, some members of Congress are attempting to limit the ability of government agencies to do their jobs of protecting the safety and wellbeing of the American people. These threats are coming on many fronts. One way, is by using the Congressional Review Act to get rid of recently implemented regulations, threatening key public protections. Other threats would weaken the power of the CPSC as an independent agency.

The efforts to halt new– or even eliminate existing– public safeguards far too often focus on the supposed costs to industry and do not accurately weigh the benefits. Lives are saved every day because of the existence of agencies such as the CPSC and their work to monitor companies, impose safety standards and recall dangerous products.

The opening comments of the product safety briefing by moderator Rachel Weintraub expressed the most powerful argument of all: while we measure the costs of regulation for businesses, we must also realize that the cost for a family that loses a child due to the underregulation of an unsafe product is immeasurable.

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Republicans Seeking Regulatory Reform Threaten Public Health & Environmental Protection

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At a recent U.S. Senate hearing, Republican members of the Commerce, Science and Transportation Committee argued in favor of eliminating important public health safeguards under the auspices of supporting small business owners and working families, supposedly without compromising consumer safety and environmental protection as the committee chair, Sen. Thune (R-SD) stated in his opening comments. However, the ongoing efforts of the Republican caucus attempting to repeal vital protections like the Department of the Interior’s Stream Protection Rule through the Congressional Review Act proves the majority has little  interest in protecting the environment or public health.

The five person panel of experts consulted by the committee for the hearing was unfortunately stacked in favor of deregulation with only one panelist, Professor Lisa Heinzerling of Georgetown Law, defending the necessity of health and safety safeguards. The rest of the panel consisted of the CEO of the American Petroleum Institute, the CEO of the Consumer Technology Association, a representative from the National Association of Manufacturers, and a research fellow from the Hoover Institution, a think tank funded by ExxonMobil and the Koch-affiliated Bradley Foundation.

Gary Shapiro, President and CEO of the Consumer Technology Association, a trade organization that works to limit government regulations on the tech industry, argued that regulation stifles innovation and opportunity for small business owners. However, the committee did not put small business owners on the panel or read witness testimony from small business owners at the hearing. There was no mention of any specific regulations that threatened small business owners. When asked to provide data on job loss due to harmful regulations, the panel was unable to do so.

This hearing was a clear example of lawmakers taking advantage of everyday Americans to advance a corporate agenda. Instead of bringing any proof of the alleged difficulties of small business owners to comply with federal regulations, the panelists took advantage of the opportunity of the Senate platform to advocate for corporate interests such as offshore drilling. If Senate Republicans were truly interested in helping average Americans, then they would not advocate on behalf of opening up Arctic drilling given the record of previous environmental damage by the oil and gas industry, most notably the Exxon Valdez oil spill in Alaska and the Deepwater Horizon oil spill in the Gulf of Mexico both of which polluted the ocean and caused major damage to local communities and fishing industries. As Professor Heinzerling noted several times throughout the hearing, the significant benefits of regulation were consistently overlooked by the panel. The American public depends on regulation for the safe consumption of food and water, to safeguard us from dangerous products and to protect us from corporate greed that threatens the environment and our financial institutions.

Sen. Thune repeatedly referenced President Obama’s call for reducing regulations at the 2012 State of the Union Address in an effort to call for bipartisan support. However, Republicans seek to do far more than just eliminate outdated and ineffective rules, instead they seek to dismantle crucial regulatory policies for public health, consumer safety and environmental protection.

In the sole claim of a specific federal regulatory policy supposedly burdening working Americans, Sen. Ted Cruz (R-TX) criticized the Obama administration’s Clean Power Plan arguing that such “over-regulation” disproportionately impacts minority communities, citing a report by the National Black Chamber of Commerce. This report was later debunked by Martin Luther King III in a Washington Post op-ed accusing the chamber, which receives funding from ExxonMobil, of misleading minority communities.

Senator Cruz’s argument ignores the health ramifications of fossil fuel power plants in minority communities. The Clean Power Plan would have curbed emissions  from coal plants which are predominantly located in low-income, minority communities, minimizing the disproportionate exposure to harmful pollutants that the communities face. A study by Environmental Health Perspectives Journal found that living in proximity to fossil fuel power plants increases one’s risk for respiratory disease by at least 11 percent. Additionally, African Americans accounted for 17.8 percent of asthma and 13.7 percent of Acute Respiratory Illness (ARI) hospitalizations even though they were only 8.7 percent of the total participants in the study. Thus, low-income, African American communities face a disproportionate risk of respiratory disease and must deal with the ramifications of lost work and decreased quality of life due to poor health and the costs of hospitalization and medicine. In addition to providing health benefits, the Clean Power Plan provided economic benefits for consumers as more efficient energy usage would lower electricity bills and the expansion of renewable energy would create job growth.

The debate over the Clean Power Plan is exactly why it is so critical that we appropriately evaluate the benefits of regulatory policy as we examine the costs. The benefits of the Clean Power Plan were lost on Senator Cruz but would not be lost on the minority communities who live in conditions where they are not afforded the right to a clean and safe environment.

It is the obligation of the federal government to protect the public from the efforts of big corporations to pollute the air we breathe and poison the water we drink. However, Senate Republicans seeking to weaken public safeguards are failing that obligation and failing the American people by advancing a corporate agenda, under the guise of support for small business owners, and directly threatening public health and safety.