Malpractice Caps The Focus Of Lawmakers Again

Recently, the health care debate seems to be a constant focus of lawmakers. But lost in the discussion has been the malpractice caps proposed by the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011 (HR 5), currently being debated in Congress. While advocates point to tort reform as the main goal behind the bill, critics note it could ultimately reduce the options a person has if they are injured due to a medical error.

What Are The Proposed Fee Caps?

As it is currently written, the legislation would progressively limit attorney contingency fee awards in medical malpractice cases. Proponents argue that such limits would make malpractice insurance more affordable to doctors and thus make health care more affordable and more available to consumers.

Representatives in states that have enacted similar limits, however, say the opposite is actually true. In California, malpractice insurance rate skyrocketed an average of 450 percent in the 13 years after the state legislature enacted attorney fee limits, according to U.S. Rep. Henry Waxman.

Further, critics also point out that the bill does little to address the real issues behind medical malpractice like preventing medical mistakes, improving the quality of health care and reducing overall costs and waste in the system.

With a contingency fee structure, an attorney agrees to pay for all of the costs associated with filing a medical malpractice law suit in exchange for a portion of the plaintiff settlement, should they will the case. Such a fee structure allows plaintiffs that would otherwise not be able to afford legal representation to have their day in court. It also lets attorneys choose their cases on merit rather than on the plaintiff's ability to pay.

Reducing contingency fees would take away the incentive for law firms to take on expensive cases against companies and insurance companies with ample resources and leave some injured people without the legal representation necessary to protect their rights.