Bill Restricting Medical Expert Witnesses Awaiting US Senate Approval
Expert witnesses in medical malpractice cases may have some extra hoops to jump through if provisions in legislation passed by the U.S. House of Representatives in June become law. While all eyes today are on the U.S. Senate vote to repeal and replace Obamacare, this less well known bill may have better odds of passage.
As it stands, the Bill, H.R. 1215, Protecting Access to Care Act of 2017, would, in a number of instances, override state law in medical malpractice negligence cases, allowing only physicians practicing or teaching in the same field and in the same state or a neighboring state to serve as expert witnesses in a defendant's malpractice claim, although it would allow courts to waive these requirements if the “appropriate witnesses otherwise would not be available.”
In such cases, healthcare expert witnesses would be required to certify the merits of the case before the lawsuit could be brought to court, except for states that already have such laws addressing "Affidavits of Merit".
The bill would also give an affirmative defense to defendants who can show that they complied with clinical practice guidelines, raising the bar on negligence claims.
Combined with provisions that give courts the power to restrict attorneys' contingency fees, limit to $250,000 claims for noneconomic damages (eg: pain and suffering), set a more restrictive statute of limitations on claims (one year in some cases), and requires plaintiff's to notify defendants 90 days before the filing of a lawsuit, the bill could reduce the number of malpractice claims and the value of those claims — which is exactly the point of the legislation.
The bill would primarily apply to cases where the federal government provided or subsidized medical coverage, although some aspects of the legislation would preempt state law, such as the provision eliminating joint liability for economic and non-economic damages.
The amendment to the bill that limits who qualifies as an expert witness1 was sponsored by Phil Roe, the U.S. Representative for the 1st District of Tenessee, an Ob/Gyn for 31 years before being elected to Congress in 2009. In his presentation of the amendment, Roe stated that his medical malpractice premiums had risen from $4,000 a year to over $50,000 a year over his medical career — part of the reason he saw the necessity for the bill's provisions.
That is an alarming increase in premiums, and has been part of the push for tort reform in many states, but to be fair, healthcare costs have also ballooned by 600% over those years2, and the average annual income of Ob/Gyns has risen nearly four fold, from $64,600 in 1975 to $268,402 now.3
The bill, now on the Senate Legislative Calendar, is expected to receive a number of amendments if it is passed into law.
Footnotes
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Roe Amendment:
SEC. 11. LIMITATION ON EXPERT WITNESS TESTIMONY.
(a) In General. — No person in a health care profession requiring licensure under the laws of a State shall be competent to testify in any court of law to establish the following facts —
(1) the recognized standard of acceptable professional practice and the specialty thereof, if any, that the defendant practices, which shall be the type of acceptable professional practice recognized in the defendant's community or in a community similar to the defendant's community that was in place at the time the alleged injury or wrongful action occurred,
(2) that the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with the recognized standard, and
(3) that as a proximate result of the defendant's negligent act or omission, the claimant suffered injuries which would not otherwise have occurred, unless the person was licensed to practice, in the State or a contiguous bordering State, a profession or specialty which would make the person's expert testimony relevant to the issues in the case and had practiced this profession or specialty in one of these States during the year preceding the date that the alleged injury or wrongful act occurred.
(b) Applicability. — The requirements set forth in subsection (a) shall also apply to expert witnesses testifying for the defendant as rebuttal witnesses.
(c) Waiver Authority. — The court may waive the requirements in this subsection if it determines that the appropriate witnesses otherwise would not be available.
See: https://www.congress.gov/amendment/115th-congress/house-amendment/151/text
- Healthcare inflation calculations provided through http://www.halfhill.com/inflation_js.htm
- Median Ob/Gyn income satistics reported by the Health Care Financing Administration, Office of Research and Demonstrations: Data from the Natinal Physicians' Practice Costs and Income Survey, 1975, through the U.S. Center for Medicaid and Medicare Services (See https://www.cms.gov/Research-Statistics-Data-and-Systems/Research/HealthCareFinancingReview/Downloads/CMS1191016dl.pdf) for 1975 and the most current statistics reported by the HR firm Sullivan, Cotter & Associates (See http://work.chron.com/average-obgyn-salary-6923.html).