As the regulatory process to implement the 2010 health care reform law continues at its laborious pace, Congress forges ahead with even more legislation that could affect emergency medicine.

Medical liability reform is the topic of several proposals currently before the U.S. House of Representatives and the Senate. For the first time in years, there is a chance that our nation will adopt a change in the medical liability landscape that could be favorable to emergency physicians, our patients, and our on-call colleagues.

ACEP has been active in getting many of these proposals on the Congressional agenda, thanks in part to our members’ advocacy efforts and our diligent and influential staff members in our Washington, D.C., office.

As of early March 2011, the following proposals were in various stages of being considered.

Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011 (HR 5)

Sponsored by Rep. Phil Gingrey (R-Ga.), Rep. Lamar Smith (R-Tex.), and Rep. David Scott (D-Ga.), this bill currently has about 97 cosponsors and was referred to the House Judiciary and Energy and House Commerce committees. The House Judiciary Committee has already completed action on the bill, although it has amended the bill to repeal the collateral source rule, which was an important component. It is uncertain whether the Energy and Commerce Committee will take action on HR 5 or whether it will go to the House floor, bypassing that committee. Its companion in the Senate, S 218, was sponsored by Sen. John Ensign (R-Nev.) and has one cosponsor. It has been referred to the Senate Judiciary Committee. ACEP fully supports the bill as introduced, including the collateral source provision.

Key features include:

• Limits noneconomic damages to $250,000.
• 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.
• Allows introduction of collateral source benefits.
• Sets statute of limitations at 3 years after date of injury manifestation or 1 year after injury discovered (with exceptions).
• Denies punitive damages in the case of products approved, cleared, or licensed by the FDA.
• Allows periodic payments of future damage awards.

Health Care Safety Net Enhancement Act of 2011 (HR 157)

Sponsored by Rep. Pete Sessions (R-Tex.) and Rep. Charlie Dent (R-Pa.), this bill has been referred to the House Energy and Commerce Committee. The legislation proposes to amend the Public Health Service Act to deem a physician or physician group of a hospital or emergency department as an employee of the Public Health Service for the purposes of any civil action that may arise from providing EMTALA-related services beginning Jan. 1, 2012. ACEP is particularly interested in enacting this legislation as it specifically addresses the unique environment of the ED. ACEP is working with a coalition of on-call specialty societies to achieve this goal. Our current focus is on increasing the number of cosponsors, working with the House Energy and Commerce Committee to gauge its level of interest, and finding a Senate sponsor. If HR 5 were to stall in the Senate, which is a distinct possibility, we hope the Senate may be willing to consider a more targeted liability bill, such as HR 157.

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.

Medical Justice Act of 2011 (HR 896)

Sponsored by Rep. Mike Burgess (R-Tex.) with about eight cosponsors, this bill has been referred to the House Judiciary Committee. It is similar to Sen. Ensign’s bill modeled on the Texas system, with the important distinction that it does not preempt state law. ACEP supports the idea that strong medical liability protections must be implemented at the federal level to ensure that all physicians, regardless of where they practice, will receive these important protections. ACEP will continue to monitor this bill.

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 damage.
• Caps wrongful death damages at $1,400,000.
• Requires unanimous jury decision for punitive or exemplary damages.
• Requires a report by a qualified expert in civil actions (in cases against physicians, the expert must be an actively practicing physician qualified based on training and experience).
• Allows periodic payments of future damage awards.
• Considers each party’s liability in direct proportion to responsibility.
• Sets statute of limitations at 2 years after date negligence occurred (for individuals 12 or older) or age 14 (for anyone under age 12).
• Provides protection for Good Samaritans who give emergency care.

Given the political climate of the current Congress, we believe one or more of the medical liability reform bills mentioned here have a very good chance of being approved by the House. However, the Senate and White House are still controlled by Democrats, who have historically not been favorable in their view of medical liability reforms. Nevertheless, President Obama has made numerous statements of support for medical liability reform, and we believe that if the right bill could get past the Senate, it would stand a good chance of becoming law. ACEP’s job is to help promote these measures before Congress and work to put medical liability bills with the best chance of success before the Senate.

ACEP will continue to urge Congress to pass these bills, which will benefit the emergency medicine community and, ultimately, our patients. We understand that this is a huge priority for our members and will impact their daily practice of emergency medicine. Be assured that not only is ACEP monitoring the changing medical liability landscape, but we are also actively working to shift it in our favor.

For more information, or to support ACEP’s legislative advocacy activities, please visit www.acep.org/advocacy or call our Washington, D.C., office at 800-320-0610.