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House GOP quietly advances key elements of tort reform

Washington Post, March 9, 2017

By: Kimberly Kindy

House Republicans are advancing a series of bills that would make changes to the civil justice system long sought by doctors and U.S. corporations, including a cap on some medical malpractice awards and new roadblocks for classes of people seeking to sue jointly to address harm.

The U.S. Chamber of Commerce and other business groups are promoting the measures, arguing that courts have grown overly tolerant of frivolous and fraudulent claims. Civil rights and consumer groups oppose the measures, saying they would severely limit the ability of average Americans to pursue legal remedies from powerful institutions.

One proposal would limit monetary awards in medical malpractice suits to $250,000 for noneconomic damages, which include pain and suffering. Currently, there is no federal limit on medical malpractice claims, and awards can run into the millions of dollars.

Late Thursday, the House narrowly passed two of the four measures along party lines: The Innocent Party Protection Act would shift some claims to the federal system from state courts, which tend to be more sympathetic to plaintiffs. The Fairness in Class Action Litigation Act would permit class-action lawsuits to proceed in federal court only if every person in the class had “an injury of the same type and scope.”

A third bill is expected to come before the chamber Friday: The Lawsuit Abuse Reduction Act would require federal judges to sanction attorneys whose claims are later found frivolous. In a letter to congressional leaders, opponents said the measure would have a “chilling effect” on a broad range of complaints, including civil rights violations, employment discrimination and environmental abuses.

Currently, there is no federal limit on medical malpractice claims, and awards can run into the millions of dollars. (Reuters)

The House has approved similar measures in recent years only to see them stall in the Senate. But the Senate may be more inclined to seriously consider the measures, advocates said, with a Republican president inclined to sign them in the White House.

During House debate Thursday, Rep. Lamar Smith (R-Texas),who introduced the Lawsuit Abuse Reduction Act, said the effort is intended to rebalance a justice system that has tilted too far in favor of plaintiff’s attorneys and their clients.

“There are so many frivolous lawsuits, ruining people’s reputations, robbing people of their livelihoods. We have to do something to reduce these junk lawsuits,” Smith said. “Often they are filed with the intention of getting a settlement. It’s a form of legal extortion.”

Most Democrats oppose the measures, arguing that they would slam shut the courthouse doors to deserving plaintiffs. Many also complained that GOP leaders were moving the bills through the Capitol at breakneck speed, without the close analysis and public debate typically afforded major legislation.

None of the four proposals has been aired in a congressional hearing. The House Judiciary Committee quietly voted along party lines to approve them over the past several weeks.

House leaders “are turning the legislative process into a kind of subterranean operation,” said Rep. Jamie B. Raskin (D-Md.), a leading opponent of the bills. “While the populace is spellbound by [Trump], the conservatives in Congress are dismantling access to justice and our tort civil liability system.”

Even some Republicans were critical of the lack of hearings.

“We need to be as open and transparent as possible. This was the complaint with Obamacare; that it was forced down our throats without enough discussion,” said Rep. Ken Buck (R-Colo.), referring to the passage of President Barack Obama’s health initiative in 2010.

Buck said he nonetheless supports the court revisions, arguing that fraudulent lawsuits “drive up costs” by forcing doctors to order unnecessary medical tests for fear they may be sued.

Republicans and business groups have long sought to retool the civil justice system, arguing that frivolous lawsuits are producing outrageous awards that bankrupt businesses and deny compensation to legitimate victims.

“The legal system, it’s gone way out of whack over the past decade,” said Harold Kim, executive vice president of the U.S. Chamber Institute for Legal Reform. “We think it is hurting the economic growth of a lot of American businesses.”

Joanne Doroshow, executive director of the Center for Justice& Democracy at New York Law School, called the fast-paced legislative campaign to overhaul multiple parts of the civil court system “unprecedented.”

“These bills, put together, would exonerate large corporations and the health-care industry for any kind of harm they may cause everyday people,” Doroshow said.

Doroshow and others said the Fairness in Class Action Litigation Act would squelch most class-action lawsuits, which typically involve plaintiffs with a wide variety of similar complaints. It could sharply restrict membership in a class, for example, to women who had been sexually harassed in the same way by the same manager, they said.

That measure would also affect asbestos trusts, which distribute funds from legal settlements to victims of asbestos-related illnesses and injuries. The trusts would be required to publicly disclose the names, medical information and award amounts of victims, an attempt to cut down on fraudulent claims that opponents say would violate victims’ privacy rights.

Military veterans disproportionately suffer from asbestos-related illnesses and injuries, and many veterans groups are fighting the bill.

“Forcing our veterans to publicize their work histories, medical conditions, majority of their Social Security numbers, and information about their children and families is an offensive invasion of privacy to the men and women who have honorably served,” 18 veterans’ groups wrote in a letter to congressional leaders.

The fourth measure in the package has yet to be scheduled for a vote. The Protecting Access to Care Act would establish a three-year statute of limitations for filing civil lawsuits in most cases where patients and their families believe negligent health care caused injury or death.

The bill would also set a $250,000 cap on compensation for “noneconomic damages,” which are separate from damages plaintiffs receive based on future economic losses. Noneconomic damages are meant to compensate victims for pain and suffering, as well as permanent disfigurement or other serious disabilities that may not interfere with their ability to work.

Many states have already adopted caps on noneconomic damages, but some have declared such limits unconstitutional. The House proposal would override those decisions, prompting lawmakers in both parties to complain that the measure would trample states’ rights.

The caps would apply broadly to all manner of medical malpractice, including errors in surgery, side effects from unsafe drugs, abuse and neglect in nursing homes, and sexual assault by doctors.

When Rep. Steve King (R-Iowa), introduced the bill last month, he said the law was necessary to “preserve fiscal sanity and federal health policy … As more companies pay in health-care costs, the less they can pay in wages.”