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Today’s markup of H.R. 4771, the so-called “Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2016,” or “HEALTH Act,” is the eleventh time since 1995 that we have considered legislation intended to deny medical malpractice victims the ability to be made whole and to hold wrongdoers accountable.

Notwithstanding the fact that this measure has repeatedly failed to become law because of its many problems, the rushed consideration and timing of this markup are not a coincidence.  We are taking up this bill because the Majority cannot keep its Members together on what to do about the federal budget.   

To begin with, H.R. 4771 is a solution in search of a non-existent problem.

Although the bill’s proponents claim too many medical malpractice lawsuits are driving up medical malpractice premiums, the facts do not support this claim.

It is not the frequency of litigation or the size of jury awards that determines medical malpractice insurance premiums.  Rather, insurance premiums are largely driven by the investment practices of insurance companies that invest premium dollars for maximum return. 

So, when the stock market plummets or interest rates drop, insurers sharply increase premiums and reduce coverage. H.R. 4771 does nothing to address this boom-and-bust cycle in the investment practices of the insurance industry.

And, it does nothing to address the McCarran-Ferguson Act’s unjustified antitrust exemption for the “business of insurance,” repeal of which would go a long way towards stabilizing the medical malpractice insurance market.

There is simply no evidence that premiums are going up because of malpractice lawsuits. While not addressing a real harm, this bill would cause real harm by severely limiting the ability of victims to be made whole.

For instance, it imposes an unjustifiably low cap on noneconomic damages.       

The bill’s $250,000 limit for noneconomic damages – an amount established more than 40 years ago pursuant to a California statute – would have a disparately adverse impact on women, children, the poor, and other vulnerable members of society.

These groups are more likely to receive noneconomic damages in medical malpractice cases because they are less able to establish lost wages and other economic losses. 

For instance, women recover lower amounts in economic damages than men because they receive lower overall wages, and, not surprisingly, they are 3 times more likely than men to receive noneconomic damages. 

Women are also more likely to suffer noneconomic loss, like disfigurement or loss of fertility, or to be the victim of conduct that is likely to lead to punitive damages, such as sexual assault.

These harms are furthered heightened by the bill’s new burdens on proving punitive damages and its expansive application to all “health care lawsuits,” not just medical malpractice suits.

Whatever the short term savings, the bill would impose broad social and financial costs in the long term, including the additional strains on Medicare, Medicaid, and other government programs caused when malpractice victims are denied full restitution.

Finally, the bill represents a deep intrusion into state sovereignty. As any first-year law student knows, tort law is supposed to be the domain of states.

Yet this bill preempts medical malpractice and product liability law in all 50 states to protect insurance companies, providers, and pharmaceutical manufacturers at the expense of victims.

Accordingly, I strongly oppose H.R. 4771 for these and many more reasons and urge the Committee to reject this bill.