5 Bills in 2017 that Could Affect Medical Liability Law

Four federal tort reform bills that could affect medical liability law have passed the House of Representatives in the first session of the 115th United States Congress, with an additional medical liability bill having been introduced in the House.^1,4

H.R. 1215 — Protecting Access to Care Act of 2017

Modeled in part after state tort reform previously enacted in California, the Medical Injury Compensation Reform Act of 1975 (MICRA),² H.R. 1215 caps noneconomic damages, allows courts to supervise arrangements for damage payments, limits attorney contingency fees, sets the statute of limitations for filing a suit and prevents health care providers dispensing FDA-approved drugs or devices from being included in product liability and class action lawsuits.

H.R. 1215 affects healthcare lawsuits where coverage for the care “was provided or subsidized by the federal government.”¹ The bill does not affect established federal laws and rules regarding vaccineinjury.

Caps on damages and fees:

• Like MICRA, the bill caps noneconomic damages in medical malpractice lawsuits at $250,000. Noneconomic damages include damages for emotional distress, suffering, and mental anguish.
• This cap would not affect states that have already established noneconomic damage caps.
• Arrangements for damage payments would be supervised by courts, and future damages could be paid periodically, as opposed to in a lump sum.
• The bill empowers courts to restrict attorney contingency fees and establishes a sliding scale for such fees.

Statute of limitations restrictions:

Limits how long patients can wait to file a medical malpractice suit:

• The proposed statute of limitations is three years after injury or one year after the claimant discovers the injury, whichever comes first.
• For minors under the age of six, the statute of limitations would be three years after the injury, one year after the claimant discovers the injury, or the minor’s eighth birthday, whichever comes later.

Product liability protections:

• Prevents health care providers who dispense FDA-approved drugs or medical devices from being included in product liability and class action lawsuits aimed at the drugs or devices

H.R. 720 — Lawsuit Abuse Reduction Act of 2017

An amendment to Rule 11 of the Federal Rules of Civil Procedure, H.R. 720 imposes mandatory sanctions for “frivolous” lawsuits, requires that parties being sanctioned compensate the “parties that were injured by such conduct” and eliminates a party’s ability to withdraw a suit a given amount of time after receiving notice of a motion for sanctions.³

Under Rule 11 of the Federal Rules of Civil Procedure, courts are permitted to place appropriate sanctions on parties deemed by the court to have filed a “frivolous” lawsuit. H.R. 720 amends Rule 11 by making such sanctions mandatory and requiring parties upon whom sanctions have been imposed to compensate “parties that were injured by such conduct.”³

Currently, there is a “safe harbor” rule that allows for a party to withdraw or correct a claim within 21 days after being served with a motion for sanctions. This bill would eliminate a party’s ability to avoid the filing of such a motion with the court by withdrawing or correcting its claim within the established 21 days.

H.R. 985 — Fairness in Class Action Litigation Act of 2017

An amendment to the federal judicial code, H.R. 985 sets conditions for when federal courts can certify class action suits, establishes which information class counsel must disclose and limits attorney fees.

Under H.R. 985, federal courts would be prohibited from certifying class action suits unless all of the following criteria are met:

• If seeking monetary relief for personal or economic injury, each individual member of a class has suffered the same “type and scope” of injury
• No class representatives or named plaintiffs are relatives of class counsel
• The party pursuing a class action suit is able to present the court with a “reliable and administratively feasible” way of deciding if all suggested class members fall within the class definition

Disclosures

Class counsel must disclose:

• Any class representatives or plaintiffs who are relatives, employees, clients or otherwise contractually related to class counsel
• The circumstances under which each plaintiff or representative decided to be included in the suit
• Any other class action the representatives and plaintiffs have had a similar role in

Fees

Attorney fees:

• May not be paid until monetary recovery is distributed to class members
• Cannot exceed the total amount distributed to class members

The Judicial Conference of the United States would submit an annual report to Congress on payments from class-action settlements.

H.R. 725 — Innocent Party Protection Act

H.R. 725 amends federal procedures to discourage fraudulent joinder.

Under current legislation:

• Cases with opposing parties holding citizenships in different states, coined “diversity of citizenship,” may be presented in federal court.
• The inclusion of at least one “nondiverse defendant,” a defendant of the same state as the plaintiff, can put a case under state jurisdiction.⁵

H.R. 725 aims to mitigate the issue of “fraudulent joinder,” where a plaintiff will wrongfully sue a party holding citizenship in the same state as the plaintiff to prevent the case from falling under federal jurisdiction.⁵

The bill amends the procedures federal courts follow to determine whether a case should remain at the federal level or be removed back to state court. The court may determine that parties have been fraudulently included if:

• Incorrect facts about the defendant’s citizenship have been fraudulently presented
• No “good faith intention” is made to prosecute the nondiverse defendant or to include them in a joint judgment
• It’s not plausible that applicable state law would impose liability on the nondiverse defendant
• State or federal law bars all claims in the complaint against the defendant

If the court determines that fraudulent joinder occurred, it must dismiss without prejudice the plaintiff’s claims against the fraudulently joined defendant and deny the motion to remand the case back to state court without prejudice.

H.R. 1876 — Good Samaritan Health Professionals Act of 2017

An amendment to the Public Health Service Act, H.R. 1876 protects health care professionals from liability as a result of any harmful act or omission when providing care on a volunteer basis in response to a disaster.

Health care professionals volunteering in response to a disaster would be protected under federal or state law if all of the following criteria are met:

• If the act or omission happens during the period of disaster
• If the professional is acting in his or her capacity as a volunteer
• If the provider believes in good faith that health care services are necessary for the individual being treated

Exceptions to the liability protection include:

• Harm caused by willful and criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed
• Acting under the influence of alcohol or an intoxicating drug

References

1. Congress.gov. Current Legislation. (accessed 10/11/2017)

2. Republican Policy Committee. “H.R. 1215, Protecting Access to Care Act of 2017.” (accessed 10/11/2017)

3. Congress.gov. “H.R.720 - Lawsuit Abuse Reduction Act of 2017.” (accessed 10/11/2017)

4. Congressional Budget Office. “H.R. 720, Lawsuit Abuse Reduction Act of 2017.” (accessed 10/11/2017)

5. Simons, W. “Choice of Law in Fraudulent Joinder Litigation” (2015). Prize Winning Papers. Paper 1. (accessed 10/11/2017)