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Letters to the 107th Congress

August 8, 2002

The Honorable F. James Sensenbrenner, Jr.
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Chairman:

We understand that your committee may, in early September, continue to mark up H.R. 4600, legislation to pre-empt portions of the state medical liability and product liability laws. On behalf of the ABA, I urge you to oppose favorably reporting the bill from Committee. The ABA opposes H.R. 4600 because it would pre-empt state medical liability laws and restrict the rights of injured patients to be compensated for their injuries.

For over 200 years, the authority to promulgate medical liability laws has rested with the states. This system, which allows each state autonomy to regulate the resolution of medical liability 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 the medical liability laws.

In addition to the policy reasons why this long- and effectively-functioning liability system should not be altered by the U.S. Congress, it should be noted that the constitutionality of the amendment will surely be challenged based on Constitutional separation-of-powers grounds. The Supreme Court, in the recent decisions of Pegram et al v. Herdrich, 120 S.Ct. 2143 (2000), and Rush Prudential HMO, Inc. v. Moran, 122 S.Ct. 2151 (2002), 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.

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. To do so would limit the ability of a patient who has been injured by medical malpractice to receive the compensation he or she deserves. This is especially problematic since such a patient already is in a very difficult position.

When a car is hit by another car that has run a red light, it is relatively easy to know what caused the accident. But when, by way of example, a surgery patient wakes up to an unexpected bad outcome, how can he or she know what has happened. Those in the position to know what caused the bad outcome are the medical professionals. Because patients lack the necessary information, they often must file a claim to access the medical records and otherwise find out what happened. If it is without merit, it is in the patient's own interest to drop the claim, and thus many claims are dropped once the patient finds out what happened. Contrary to what some believe, juries do not favor plaintiffs over doctors in medical malpractice cases. Duke University School of Law Professor Neil Vidmar's extensive study of juries found that:

[o]n balance, there is no empirical support for the proposition that juries are biased against doctors or that they are prone to ignore legal and medical standards in order to decide in favor of plaintiffs with severe injuries. This evidence in fact indicates that there is reasonable concordance between jury verdicts and doctors' ratings of negligence. On balance, juries may have a slight bias in favor of doctors.

See Medical Malpractice and the American Jury: Confronting the Myths about Jury Incompetence, Deep Pockets, and Outrageous Damage Awards, University of Michigan Press at page 182 (1995).

In addition, he concludes at page 259 of his book that research "does not support the widely made claims that jury damage awards are based on the depth of the defendants' pockets, sympathies for plaintiffs, caprice, or excessive generosity." A survey of studies in the area by University of Missouri-Columbia Law Professor, Philip Peters, Jr. published in March 2002 likewise found that:

[t]here is simply no evidence that juries are prejudiced against physician defendants or that their verdicts are distorted by their sympathy for injured plaintiffs. Instead, the existing evidence strongly indicates that jurors begin their task harboring sympathy for the defendant physician and skepticism about the plaintiff.
See Philip G. Peters, Jr., The Role of the Jury in Modern Malpractice Law, 87 Iowa L. Rev. 934 (2002).

The ABA is especially concerned about the provisions in H.R. 4600 that would place a cap on pain and suffering awards in states that have no such cap. 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.

We urge you not to approve H.R. 4600.


Robert D. Evans
Director, Governmental Affairs Office

cc: Members of the House Judiciary Committee

107th Congress Letters Home

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