The Right to Sue–A Right You Hope You’ll Never Need


| Jim Coogan

..but a right that you’ll be grateful to have if something goes wrong.

As you read this, there is a bill that has been presented in the United States House of Representatives.  It’s titled the “Protecting Access to Care Act of 2017” (H.R. 1215).  It is a clever name.  Who doesn’t want to protect something benign like “access”?  And what’s more important than “care”?  Protecting access to care seems like a no-brainer.  And thus, give credit to the drafters for their marketing skills.

The problem is that the bill has nothing to do with patients’ access to medical care.  Rather, it is very clearly designed to limit patients’ access to the Courthouse when something goes wrong.  The changes to your rights are broad, covering various fields and types of claims; and they are deep, with drastic changes in what happens to you when something goes wrong.  Ultimately, the need to call a lawyer and resort to the court system affects a small proportion of medical care.  These are rights you never think about having.  But you have them.  And the fact that you have them protects you by giving incentives to care providers not to take undue risks.

And the view that this is a very dangerous bill for patients, and a massive giveaway to the Insurance Industry, is widely-held.  The terrific Center for Justice & Democracy has released a review of the bill and the massive opposition to it.  As the Press Release notes, among the groups opposing the bill are: the AFL-CIO, American Association of Directors of Nursing Services, the Christopher & Dana Reeve Foundation, Consumer Federation of America, the Impact Fund, and the National Education Association.  In fact, as the press release notes, there are over 80 total groups urging the House not to pass this bill.

One thing that is remarkable about the bill is that the proponents of the bill have often expressed concerns in the past that the Federal Government should not over-reach into telling the states how to govern themselves.  This bill changes state laws for damages in medical negligence cases, changes the rights of nursing home residents and blocks their access to the courthouse, upending the liability of drugmakers who sell dangerous and faulty drugs, and those who make medical products that fail.

It is more than the right to sue a hospital or a nursing home that is at stake.  The reality is that we live in a country where the vast majority of providers of care are private entities.  They are money-making enterprises.  Often, we hear that a hospital or home might have a religious calling, which is laudable.  And many are “not-for-profit,” which sounds very generous.  But these health operations respond to economic incentives just like anyone else.  What that means is that the threat of being sued affects behavior.  Conversely, knowing that your company cannot be sued (or a suit will not cost you very much because the amount has been capped) will create a very dangerous set of circumstances.

The reality is that virtually everyone who chooses to go into the medical field as a doctor, nurse, or other care professional does so with the highest goals of healing and caring in their hearts.  And the same is likely true for those who work as administrators in healthcare.  But when a company knows that the consequences of errors are not there, corners get cut.  Staffing crunches can be solved by simply going with 75% of the usual nurses on a floor.  Equipment is replaced a few years after the expiration of its useful life.  These types of gambles do not always lead to injury or death.  But they should not be encouraged.

Justice for patients who have been unfairly or negligently treated should be decided in a Court of Law by a Jury.  The Constitution guarantees our right to a trial by jury through the Seventh Amendment.  As a citizen, the most powerful tool at your disposal to level the playing field when attempting to gain justice is the power of the Courts.  And as a voter, you can voice your opposition to H.R. 1215 by contacting your U.S. Housemember to tell them that you want to protect even the rights you hope never to have to take advantage of.

..but a right that you’ll be grateful to have if something goes wrong.

As you read this, there is a bill that has been presented in the United States House of Representatives.  It’s titled the “Protecting Access to Care Act of 2017” (H.R. 1215).  It is a clever name.  Who doesn’t want to protect something benign like “access”?  And what’s more important than “care”?  Protecting access to care seems like a no-brainer.  And thus, give credit to the drafters for their marketing skills.

The problem is that the bill has nothing to do with patients’ access to medical care.  Rather, it is very clearly designed to limit patients’ access to the Courthouse when something goes wrong.  The changes to your rights are broad, covering various fields and types of claims; and they are deep, with drastic changes in what happens to you when something goes wrong.  Ultimately, the need to call a lawyer and resort to the court system affects a small proportion of medical care.  These are rights you never think about having.  But you have them.  And the fact that you have them protects you by giving incentives to care providers not to take undue risks.

And the view that this is a very dangerous bill for patients, and a massive giveaway to the Insurance Industry, is widely-held.  The terrific Center for Justice & Democracy has released a review of the bill and the massive opposition to it.  As the Press Release notes, among the groups opposing the bill are: the AFL-CIO, American Association of Directors of Nursing Services, the Christopher & Dana Reeve Foundation, Consumer Federation of America, the Impact Fund, and the National Education Association.  In fact, as the press release notes, there are over 80 total groups urging the House not to pass this bill.

One thing that is remarkable about the bill is that the proponents of the bill have often expressed concerns in the past that the Federal Government should not over-reach into telling the states how to govern themselves.  This bill changes state laws for damages in medical negligence cases, changes the rights of nursing home residents and blocks their access to the courthouse, upending the liability of drugmakers who sell dangerous and faulty drugs, and those who make medical products that fail.

It is more than the right to sue a hospital or a nursing home that is at stake.  The reality is that we live in a country where the vast majority of providers of care are private entities.  They are money-making enterprises.  Often, we hear that a hospital or home might have a religious calling, which is laudable.  And many are “not-for-profit,” which sounds very generous.  But these health operations respond to economic incentives just like anyone else.  What that means is that the threat of being sued affects behavior.  Conversely, knowing that your company cannot be sued (or a suit will not cost you very much because the amount has been capped) will create a very dangerous set of circumstances.

The reality is that virtually everyone who chooses to go into the medical field as a doctor, nurse, or other care professional does so with the highest goals of healing and caring in their hearts.  And the same is likely true for those who work as administrators in healthcare.  But when a company knows that the consequences of errors are not there, corners get cut.  Staffing crunches can be solved by simply going with 75% of the usual nurses on a floor.  Equipment is replaced a few years after the expiration of its useful life.  These types of gambles do not always lead to injury or death.  But they should not be encouraged.

Justice for patients who have been unfairly or negligently treated should be decided in a Court of Law by a Jury.  The Constitution guarantees our right to a trial by jury through the Seventh Amendment.  As a citizen, the most powerful tool at your disposal to level the playing field when attempting to gain justice is the power of the Courts.  And as a voter, you can voice your opposition to H.R. 1215 by contacting your U.S. Housemember to tell them that you want to protect even the rights you hope never to have to take advantage of.

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