Health and Human Service Secretary Tom Price and congressional Republicans seek to replace the Affordable Care Act with a law that will make health care affordable for all Americans.
At what price?
Both President Trump and Price have criticized "frivolous" medical malpractice lawsuits for contributing to the cost of health care and health insurance. Insurers are said to charge more to recoup the costs of lawsuits; doctors are said to order unnecessary care for fear of legal reprisal. So the new Trumpcare will limit the rights of patients to a civil jury trial and will cap the damages of those most severely injured by their doctor.
Melania Trump can sue for $150 million for an injury to her reputation, but a patient rendered quadriplegic or brain damaged by medical error will be limited to $250,000 for pain, suffering, and loss of enjoyment of life. Somehow, this cap on noneconomic damages lowers the cost of health care. I do not believe there is hard data really linking the two.
By branding many cases as "frivolous lawsuits," Price and Trump try to equate malpractice cases to a form of "blackmail." In fact, these are not easy cases for a lawyer to prosecute. It is not a FedEx truck running a red light. To the lawyer, a malpractice case is heavy lifting and a big financial risk, requiring a significant effort in manpower. And, because an injured patient cannot afford it, out-of-pocket costs must be advanced to hire medical experts to prove the case.
No lawyer undertakes such a case frivolously. To resort to monikers like "frivolous lawsuits" is to persuade by emotion and not fact. Let's not forget that, next to heart disease and cancer, medical error is the third leading cause of death in the U.S. annually. If serious injury is added to the mix, the numbers are astounding. These are Americans who can least afford to pay the price of Trumpcare.
Most Republicans strongly believe in states' rights and much of Price's press conference on March 7 was a nod to the states to manage local health care. Yet a pendant provision in Trumpcare limiting a patient's right to full damages in a malpractice case federalizes state tort laws.
A doctor's litigation risk varies widely from state to state. Interest groups and insurance markets, as Price recognized, vary among the states. Frankly, the public's opinion of lawsuits and attitudes toward compensation for patients wrongfully injured varies dramatically state to state and even city to city.
State governments already regulate medical licensure and disciplinary proceedings; they are capable of managing state tort law. Some states have enacted limitations on damages and others, like Minnesota, require an affidavit of expert review to prosecute a medical malpractice case. A lawyer in Minnesota must certify he or she has spoken to a medical expert who will testify about deviations in medical standards of care. Thereafter, the expert must provide the court with an affidavit that contains the opinions to which the expert will testify. This seems like a reasonable procedure to separate the cases with merit from the so-called frivolous case.
The Price and Trumpcare technique for eliminating the frivolous case is to paint with a broad brush and limit the rights of any and all claimants. It is akin to cracking a walnut with a sledge hammer. The Minnesota procedure is a far better approach and is accepted in Minnesota by the bar and medical professionals alike.
A law creating a class of litigants with a special privilege, like a cap on recovery, must be rationally related to a legitimate governmental purpose. I only hope our Congress will thoroughly weigh real empirical data that medical malpractice lawsuits are truly linked to higher healthcare costs. Otherwise, America will be left with a speculative experiment that imposes an impermissible "tax" on severely injured patients.
Michael Snyder is an attorney in St. Paul.