On June 28, 2017, the U.S. House of Representatives passed the Protecting Access to Care Act of 2017 (“Act”). The purpose is essentially to engage in federal tort reform to lower recoveries against health care providers. The Act applies to liability claims about diagnosis, assessment, prevention or treatments for disease or impairment rendered by health care providers and provided, in whole or in part, through federal programs, subsidies or tax benefits.
The Act places no limits on the economic recovery (monetary losses) and limits noneconomic damages (pain, suffering, anguish, disfigurement, etc.) to $250,000, regardless of the number of parties or claims. Each defendant is obligated to pay a percentage of a recovery based on its responsibility for the plaintiff’s injuries, requiring the jury to decide each defendant’s level of responsibility. Significantly, the Act does not preempt any state laws that specify a monetary amount for economic or noneconomic damages. For example, the Virginia Medical Malpractice Act setting forth maximum recovery amounts based on the year in which the malpractice occurred will not be affected by the Act. In addition, applying a sliding scale based on the amount of a recovery, the Act limits the amounts plaintiffs’ attorneys can be paid on a contingent fee basis. The attorney fee limit applies to judgments, settlements, and any form of alternative dispute resolution.
Two conditions must be met before filing a lawsuit. The plaintiff must provide 90 days’ written notice of intention to file the lawsuit to the health care provider. Also, the plaintiff must obtain an affidavit of merit from a health professional, who qualifies as an expert in the defendant’s practice, which states what the standard of care is, that the standard was breached by the defendant, what care should have been provided or excluded, how the breach caused the injuries and the list of records reviewed. This affidavit must be filed with the initial complaint.
The Act limits the time period within which a lawsuit can be filed to the first occurring of the following:
- 3 years after occurrence;
- 3 years after completion of the medical service in issue; or
- 1 year after the injury is discovered or should have been discovered.
- For minors over 6 years old, #3 does not apply.
- For minors under 6 years of age, 1 through 3 apply and the suit can be brought prior to the minor’s 8th birthday, whichever time period is longer.
The limitations period can be tolled only upon proof of fraud, intentional concealment or in foreign body cases. For minors, the limitations periods can be tolled when the parent and health care provider committed fraud or collusion in failure to bring the action for the minor. The Act does not preempt state laws that provide limitations periods less than 3 years after injury, less than 1 year after discovery, time frames for minors that are different, time frames based on occurrence date, or that specify a statute of repose.
The Act also lays ground rules for qualifications and use of expert witnesses. Experts opining on standard of care, breach and causation must be licensed in the occurrence state or a bordering state. The expert must also have one or both of the following for one year prior to the occurrence: an active clinical practice in the same medical discipline as the defendant and a position instructing health care students in the same medical discipline as the defendant.
This Act just issued from the House and will probably see revisions when the considered by the Senate. Thus, the final version is not known. However, one thing is clear: state legislatures will be scrambling to either increase or decrease tort reform protections, which may be an unexpressed intention of the Act. It is also clear that long term care facilities providing health care services through Medicare and Medicaid programs will be impacted by the final version of this federal tort reform.