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Medical Malpractice

ABA opposes federal bill that would impose caps in med-mal cases

The ABA on Monday sent a letter to House lawmakers urging a no vote on a bill that imposes a federal cap of $250,000 on noneconomic damages in medical malpractice cases.

The letter (PDF) says Congress should not substitute its judgment for that of the states, which are “the repositories of experience and expertise” in matters involving medical liability and insurance.

The bill, known as the Protecting Access to Care Act of 2017, also would eliminate joint and several liability and would authorize courts to reduce contingent fees. The ABA opposes those provisions as well.

The ABA opposes caps on compensatory damages at both the state and federal level, according to the letter. When noneconomic damages such as pain and suffering are capped and economic damages are low, injured patients are less likely to find lawyers to represent them, the letter says.

Damages caps also shift the cost of injuries from the responsible party to the taxpayer, the letter argues. The letter also says that courts already have the power of remittitur to set aside excessive verdicts.

The ABA does believe that, at the state level, laws providing for joint and several liability should be modified so that defendants whose responsibility is substantially disproportionate to the entire loss are liable only their equitable share of the plaintiff’s noneconomic loss.

But the association opposes any federal rule that pre-empts state laws on joint and several liability, the letter says. The ABA also opposes the federal proposal because it would apply a proportionate liability rule to all damages, not just noneconomic damages.

The letter also states that the ABA opposes sliding-scale contingent fees and other special fee restrictions.

Typo in last paragraph corrected at 11:15 a.m.