A proposed medical malpractice reform may soon put patients’ health care at risk. H.R. 1215, the Protect Access to Health Care Act of 2017, would place a $250,000 cap on non-economic damages in medical malpractice cases for anyone who has health care coverage under a federal program, subsidy, or tax benefit. This includes those who are covered under the Affordable Care Act, service member and veteran health plans, as well as Medicaid and Medicare. The federal reform will supersede any state law regarding claims of non-economic damages in medical malpractice lawsuits, including joint and several liability. The proposed reform may dramatically affect the amount of damages seniors and their families may be able to recover in civil lawsuits alleging elder abuse in nursing homes.
Under the proposed legislation, manufacturers of dangerous medical equipment, hospitals where incidents of medical malpractice occur, and nursing homes where abuse takes place will receive stronger protections at the cost of the victim. Adults, elderly and minor children above the age of six will fall under a uniform statute of limitations to file medical malpractice lawsuits – three years after the injury or one year after the claimant discovers the injury, depending on which comes first. For minors under six years old, lawsuits may be filed three years after the injury, one year after the injury is discovered, or the minor’s eighth birthday, depending on which occurs later. As outlined in the bill’s summary, juries cannot be informed of the $250,000 limitation for non-economic damages, including pain and suffering. Parties will be held liable for the amount of damages strictly proportional to their responsibility.
If a victim is successful in their medical malpractice suit, they may not be awarded a lump sum for damages recovered. Instead of the victim or their family receiving the damages in full, the insurance company can hold onto the amount, provide compensation to the victim in periodic payments, and benefit from the interest earned. Additionally, the federal regulation imposes restrictions on the victim’s right to contract with their attorney on fees, while health care professionals, hospitals and insurance companies do not have the same mandates. Additionally, in a case against a drug company for an unsafe or dangerous drug or product that was FDA-approved, hospitals, nursing homes, or health care providers (as defined) will be released from liability. This means, even if the health care professional or institution negligently prescribed or administered the dangerous medication or product, they cannot be held jointly liable for the patient’s injuries or death that occurred as a result.
The proposed legislation may pose greater risks for seniors versus victims of younger age groups. The bill comes at a time when there is a greater prevalence of elder abuse – physical, sexual, financial, emotional – in nursing homes. Between 2013 and 2015, the number of allegations of abuse and neglect reported to the New York Attorney General’s office that were related to nursing home care climbed from 1,392 to 1,644 – up about 18 percent, according to City and State New York. The effects of the cap on non-economic damages may be more devastating for elder abuse patients who do not experience a loss of income.
Oftentimes, elder abuse cases, including those for sexual-based offenses such as rape and sexual assault, will be decided as civil matters. Civil cases allow the victim or their loved ones to recover damages for medical treatment as well as non-economic damages, including pain and suffering, worsening of previous injuries, and loss of enjoyment of life, which may be severe in some elder abuse cases. Due to the fact that many senior citizens rely on public benefits like Medicaid, Medicare and veteran’s benefits, this group of people, in particular, will be affected by this legislation. Additionally, because some non-economic damages are granted to make a public example out of the health care institution or professionals and curtail similar actions being taken in the future, these cases will not hold as much incentive to provide better health care in the future.
Nursing home abuse and neglect are serious offenses that can have devastating effects on victims and their loved ones. It is important that victims of nursing home abuse or neglect consult the guidance of an experienced attorney who can represent their interests and protect their legal rights. The New York personal injury attorneys at Levine & Slavit, PLLC are experienced in helping resolve nursing home abuse and neglect for New York City and Long Island residents. For more information or to schedule a consultation, contact our New York nursing home abuse law office at (212) 687-2777.