Medical Care Access Protection (MCAP) Act of 2011 (S 197)

Sponsored by Sen. John Ensign (R-Nev.) with about eight cosponsors, this bill has been referred to the Senate Health, Education, Labor, and Pensions (HELP) Committee. This legislation mirrors liability reform that Texas enacted in 2003 and has a “stack cap,” which means each individual party (physician, hospital, other institution) could be liable for up to $250,000, with a maximum allowable cap of $750,000 on noneconomic damages. ACEP is actively working for this bill to pass.

Key features include:

• Limits noneconomic damages to $250,000 from a provider and $250,000 from a health care institution (but no more than $500,000 from multiple institutions) for a possible total of a $750,000 cap on noneconomic damages.
• Limits punitive damages to the greater of either two times the economic damages or $250,000.
• Considers each party’s liability in direct proportion to responsibility.
• Limits attorney contingency fees.
• Prescribes qualifications for expert witnesses.
• Reduces damage awards by the amount of collateral source benefits unless payor of benefits has the right to subrogation.
• Sets statute of limitations at 3 years after date of injury manifestation or 1 year after injury discovered (with exceptions).
• Requires court-imposed sanctions for filing frivolous suits.
• Prohibits providers from being party in a product liability/class action suit for prescribing or dispensing an FDA-approved prescription drug, biologic product, or medical device for its approved indication.
• Allows periodic payments of future damage awards.

Medical Liability Procedural Reform Act of 2011 (HR 314)

Sponsored by Rep. Mac Thornberry (R-Tex.) with about three cosponsors, this bill has been referred to the House Judiciary Committee. However, based on our meeting with Chairman Lamar Smith (R-Tex.) and the House Judiciary Committee staff in February, we expect the committee to postpone further action on medical liability reform measures until they see how the Senate deals with HR 5. This legislation would establish grants to states (administered by their attorneys general) to develop, implement, and evaluate health care tribunals (health courts). ACEP supports this effort as one possible way to help eliminate frivolous lawsuits.

Provider Shield Act of 2011 (HR 816)

Sponsored by Rep. Phil Gingrey (R-Ga.) with about nine cosponsors, this bill has been referred to the House Energy and Commerce Committee and the House Judiciary Committee.

The bill states that no guideline or standard developed under any Patient Protection and Affordable Care Act provision can be construed as the standard of care owed by a health care provider to a patient in any medical malpractice or medical product liability case. ACEP supports this legislation because of the important statement it makes that every patient is different and it is ultimately the decision of the provider and patient that should determine the best course of treatment.