The AGA and the alliance support H.R. 5/S. 1099, the HEALTH Act of 2011 (Help Efficient, Accessible, Low-cost, Timely Healthcare). This bill includes several proposals to reform medical liability, including:

• Resolving claims quickly by setting 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.
• Compensating patients fully for all medical and economic damages, while placing a reasonable $250,000 limit on noneconomic damages and making a defendant liable only for the percentage of damages that is equal to his or her share of responsibility for the injury.
• Maximizing the amount of award that goes to injured patients and discouraging frivolous lawsuits by implementing a sliding scale for the payment of attorney contingency fees.
• Eliminating double recovery by allowing the introduction of evidence of collateral source benefits paid and by prohibiting a provider of such benefits from recovering any amount from the injured patient’s lawsuit award.
• Awarding punitive damages when the injured patient receives compensatory damages and it is proven by clear and convincing evidence that the defendant acted with malicious intent to injure the patient or deliberately failed to avoid unnecessary injury.
• Granting recovery to patients of the greater of two times the amount of economic damages or $250,000, but not punitive damages, for products that comply with FDA standards.
• Ensuring payments are available when patients need them by providing for periodic payments of future damages.

The outlook for this bill in the House is very good and is expected to pass. The outlook in the Senate, though, is not good. Both sides feel strongly and have good points that need to be considered and addressed.

The first issue is whether medical liability is a state or federal concern. The argument is made that this issue is normally handled in state courts and thus should be addressed by state legislatures. On the other hand, this is a national issue that needs clear resolution. The federal government has an interest in this since it is a major health-care payor.

Central to H.R. 5 is the establishment of caps on economic damages. The cap amount is similar to those in California and Texas. The debate here is whether or not these are effective in reducing the frequency of suits and whether it is appropriate to establish a separate tort system for medical malpractice as opposed to, say, product liability.

Two areas not in H.R. 5 that seem to be garnering support are “health courts” and presumed reasonableness. The health courts are boards, as in Indiana and some other states, that review the issues of a case to determine if a suit is appropriate. This approach appears to be beneficial. The presumed reasonableness is a safe harbor approach through which if a physician can be shown to have followed established guidelines, then his/her actions are presumed reasonable and not liable. This approach is included in the Patient Protection and Affordable Care Act, but only as a trial.

Underlying all of these arguments is the necessity to address defensive medicine. That is the gorilla in the corner. The Congressional Budget Office estimates that the reforms in the HEALTH Act could decrease health-care spending and reduce the federal deficit by $57 billion over the next ten years. Other estimates go as high as $200 billion. It is this sort of urgency that caused President Obama to call for malpractice reform in his State of the Union address.

These are issues that all gastroenterologists need to be discussing with their representatives in Congress. Unless they hear from us, they will assume we are not interested in these issues. Please — get involved to show them gastroenterologists agree with the necessity to reform medical liability.

If you would like to become more involved in AGA’s grassroots advocacy activities, contact Lauren DePutter.