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Letters to the 107th Congress

July 23, 2002

The Honorable Michael Bilirakis
Chairman, Subcommittee on Health
Committee on Energy and Commerce
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Chairman:

On behalf of the American Bar Association, I write to express the concerns of the ABA regarding H.R. 4600, legislation to pre-empt portions of the state medical professional liability and product liability laws. I ask that this letter be included in the record of the hearing that was held July 17, 2002, on health care liability legislation.

The ABA opposes enactment of H.R. 4600 because it would pre-empt state medical professional liability and product liability laws and because it would restrict the rights of injured patients to be compensated for their injuries.

Federal Pre-emption of State Tort Laws

For over 200 years, the authority to promulgate medical and product liability laws has rested with the states. This system, which allows each state autonomy to regulate the resolution of injury actions within its borders, is a hallmark of our American justice system. Because of the role they have played, the states are the repositories of experience and expertise in these matters. If enacted, H.R. 4600 would pre-empt the rights of the states to continue to administer these laws. In addition to the policy reasons why this long and effectively-functioning system should not be altered, it should be noted that the constitutionality of H.R. 4600 will surely be challenged based on Constitutional separation-of-powers grounds. In addition, provisions in H.R. 4600 such as the proposed cap on non-economic damages have been held to be in violation of the constitutions of a number of states.

Currently, states have the opportunity to enact and amend their tort laws, and the system functions well. Congress should not substitute its judgement for the systems which have thoughtfully evolved in each state over time. The Supreme Court, in the recent decisions of Pegram et al v. Herdrich and Rush Prudential HMO, Inc. v. Moran, continued to recognize that it is appropriate for the states to handle health accountability matters because health care is an area traditionally left to the states to regulate.

The following provisions of H.R. 4600 are of special concern to the ABA.

Caps on Damage Awards

The ABA opposes caps on pain and suffering awards. Instead, the courts should make greater use of their powers of remitter and additur to set aside excessive or inadequate verdicts. Medical professional liability expenditures account for less than one percent of national health care expenditures. Provisions contained in H.R. 4600 to cap non-economic damages would not eliminate the less than one percent of health care costs attributable to medical professional liability since very few people are the subject of such caps. Any savings in the cost of health care would be a small fraction of the less than one percent figure.

However, it is obvious that those affected by caps on damages are the patients who have been most severely injured by the negligence of others. No one has stated that their pain and suffering injuries are not real or severe. These patients should not be told that, due to an arbitrary limit, they will be deprived of the compensation they need to carry on. Yet H.R. 4600, if enacted, would result in the most seriously injured persons who are most in need of recompense receiving less than adequate compensation. Since capping non-economic damages would have a de minimis effect on the cost of health care, such proposals would not have a measurable impact upon the overall cost of health care. Such proposals, however, would impact severely and dramatically upon the persons who are most severely injured by medical malpractice.

Joint and Several Liability

H.R. 4600 would abolish the doctrine of joint and several liability in health care liability cases. The doctrine of joint and several liability makes it easier for injured patients to be compensated for their injuries since they do not have to prove the precise degree of responsibility for negligent defendants. It also recognizes that if each of the defendants had not contributed to the combination of events that caused the injuries, the injured patient would not have incurred the losses due to the injuries. Defendants may occasionally pay more than their share of damages because another defendant does not pay his or her share. However, on balance, the ABA believes that it is preferable that a patient injured by someone else's negligence not be deprived of compensation for his or her economic losses. Thus, the ABA supports holding defendants jointly liable for economic losses.

On the other hand, the ABA believes the balance is different for non-economic losses and that it would be appropriate for the states to consider enacting legislation to amend the doctrine of joint and several liability so that it would not apply to non-economic losses when the defendant's responsibility is substantially disproportionate to liability for the entire loss.

We appreciate this opportunity to express the ABA's views on these important matters.


Robert D. Evans
Director, Governmental Affairs Office

cc: Members of the Subcommittee on Health

107th Congress Letters Home

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