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Proposed Bill to Limit Medical Malpractice Damages for Elderly

H.R. 1215 is currently under consideration by Congress, and would limit Medical Malpractice damages for elderly on Medicare


Tampa, FL -- (ReleaseWire) -- 05/11/2017 --The United States Congress is currently considering a bill that would place a $250,000 cap on non-economic damages in medical malpractice cases for anyone whose health coverage is subsidized or provided by the government. Called the "Protecting Access to Care Act of 2017," H.R. 1215 would supersede any state law regarding non-economic damages. Because the bill would specifically apply to anyone who receives Medicare, this bill has the potential to dramatically limit the amount that can be recovered in civil lawsuits for alleged elder abuse by elderly residents of nursing homes and their families.

H.R. 1215 has been introduced at a time when there is a high prevalence of elder abuse across the country. According to a study funded by the National Institute of Justice, 11 percent of all elderly residents of nursing homes and other long-term care facilities experience some form of mistreatment—whether intentional or unintentional, including physical, emotional or sexual abuse--every year. This mistreatment can take many forms, from nursing home workers providing a patient with the incorrect medication, to neglect that leads to pressure ulcers (also known as bed sores). 

For information on the signs to look for in elderly abuse of a loved one, see this informative post:

Although H.R. 1215 would not cap economic damages in medical malpractice cases, the effects of the cap on non-economic damages would be magnified for elder abuse patients who do not experience loss of income. In general, non-economic damages refer to those damages caused by medical malpractice that are not related to monetary losses; for example, pain and suffering, worsening of previous injuries and the loss of enjoyment of everyday activities, are considered as non-economic damages by the jury in medical malpractice cases.

Prominent Florida personal injury lawyer Armando Edmiston elaborates, "This cap on non-economic damages in medical malpractice cases protects the health care professionals and the insurance companies. In no way does this bill help the millions of Americans that are on Medicare/Medicaid or whose health insurance are subsidized by the federal government. The most valuable part of a medical malpractice case is the non-economic damages because they include the pain and suffering and loss of enjoyment of life."

As introduced by Rep. Steve King (R - IA), H.R. 1215 would also enact a statute of limitations that is significantly shorter than the current law in most states, repeal any state's joint and several liability laws (under which any party to a medical malpractice lawsuit can be held responsible for all of the damages caused by any other responsible party), and prohibit lump-sum recoveries when a plaintiff is successful in their suit. Taken together with the limit on non-economic damages, H.R. 1215 has the potential to significantly impair the ability of alleged victims of elder abuse, or their families, to achieve the same monetary damages in successful medical malpractice cases as under the current set of state laws.

Mr. Edmiston goes on to explain how this bill will affect a lawyer's ability to take personal injury cases on a contingency basis, and how that will trickle down to the victims of medical malpractice, "HR 1215 is an abomination to the almost 9 million people whose health insurance is provided for or subsidized by the federal government. This bill would almost surely cause a mass exodus of all the good personal injury lawyers who work hard to vindicate their clients from elderly abuse or professional misconduct. The plaintiff personal injury lawyer is the guardian to ensure that health professionals properly train and perform medical services within the realm of accepted medical practice. Without personal injury lawyers, the quality of healthcare in this country could reduce drastically. Should this bill pass, great lawyers like myself could not stay in this area of practice because it would greatly limit my ability to recover for the clients, which would affect my contingency income and allow me to help as many people as possible including taking riskier cases. Because in a medical malpractice case I am compensated on a contingency, the greater the award the more I can earn. However, if we lose at trial or I can't make a recovery for my clients, then I have lost everything including my time and costs in the case. That's why being able to take bigger cases allows us to get big recoveries so we can help everyone at our expense. This bill would in essence extinguish the ability for lawyers to take these cases on a contingency and would thus require injured people to pay hourly for the lawyers work. Meanwhile most of the people who are injured this way either have no income or very limited means so this bill would have a chilling effect to about 8 million people in this country. The only way we can continue to prosecute medical malpractice cases is if the legislature lets us recover the maximum amount that a jury awards. This bill limits the jury's findings, which to me, does not seem fair. In my view, let juries decide how much money a person should receive because of elderly abuse or medical malpractice. Justice is in the eyes of the beholder, however limiting recoveries for elderly people and other Americans because of their health insurance status seems unrighteous."

H.R. 1215 was introduced in the United States House of Representatives on February 24 and is currently on the calendar to be considered by the entire body. If successful in the House, the bill would also need to go before the U.S. Senate in order to become law.

About Armando Edmiston
Mr. Edmiston is the founding attorney at Florida based Ask2Amigo Law Firm. The attorneys at Ask2Amigo Law Firm have over 25 years of experience specializing in personal injury cases involving medical malpractice, elderly negligence and elder abuse. Call today to schedule a free consultation.