Mar 15, 2012 11:56 AM

Debunking H.R. 5 Talking Points

Opposition to H.R. 5 is rising from all corners – patient safety groups, state lawmakers, and conservative legal scholars.  Naturally, lead bill sponsor Rep. Phil Gingrey (R-GA) is desperately trying to keep support – but is using dubious statistics and blatant falsehoods.

In a post on Jay Bookman’s blog at the Atlanta Journal Constitution, a Gingrey spokesperson responded to Bookman’s original criticisms of H.R. 5. While it is riddled with inaccuracies, we wanted to highlight a few worth debunking:

Firstly, this is a patient — not a Republican — issue which costs our health care system tens of billions of dollars annually.

This bill destroys the legal rights of patients – whether they have been injured by medical negligence, a defective drug or device, abuse in a nursing home, or a health insurance company committed to denying just claims.  Yes, some may find the bill helpful – like insurance companies that want to pad their profits.  But let’s not pretend this will help patients.

So this definitely is not a patient issue, and increasingly, it’s not a Republican issue either.  There is bipartisan opposition to H.R. 5 – with several Republican members of Congress and conservative legal scholars voicing their dissent.

The Department of Health and Human Services estimates that frivolous lawsuits cost between $70 and $126 billion per year.

This figure relies on a study conducted by the Bush administration’s Department of Health and Human Services (HHS) that itself relied on a seriously flawed study by Daniel Kessler and Mark McClellan. The nonpartisan Congressional Budget Office (CBO) revisited Kessler and McClellan’s findings and were unable to replicate their results.  The CBO stated it, “found no evidence that restrictions on tort liability reduce medical spending.  Moreover, using a different set of data, CBO found no statistically significant difference in per capita health care spending between states with and without limits on malpractice torts.”

In fact, recent research has found that tort reform does not slow growth in health care costs. Researchers studying the effects of Texas’ strict cap on liability in instances of medical liability found “no evidence that Texas’ 2003 tort reforms ‘bent the cost curve.’”  Research released last week from the Center for Progressive Reform stated, “These changes would limit the deterrent effect of civil litigation and diminish the regulatory backstop that the civil justice system provides to the professional licensing system, leading to more medical errors.  Restricting lawsuits might save doctors a negligible amount on malpractice premiums but the vast majority of any savings will most certainly line the pockets of the insurance companies demanding these restrictions.”

 

Because of this, more and more physicians are driven out of practice. This leaves patients, particularly seniors, without access to quality care.

The total number of physicians in the U.S. rose to yet another record high in 2010, the most recent year for which data are available. There were 985,375 physicians in the U.S. in 2010, about 13,000 more than the year before. There are now twice as many physicians per 100,000 population as there were when the American Medical Association began tracking figures in the 1960s.

Additionally, the number of physicians per 100,000 population was 20 percent higher in states WITHOUT caps than in states with caps (347 v. 290) in 2010.

When Georgia’s legislature passed a malpractice cap in 2005, it had 245 physicians per 100,000 population. In 2006, that number dropped to 244 and then 243 in 2007. In 2008, the ratio jumped back up to 245 per 100,000 population and stayed at that level in 2009. In 2010, the Georgia Supreme Court overturned the state’s malpractice cap on constitutional grounds; that same year, the ratio jumped to 247 per 100,000 population.

The bill also focuses on limits to non-economic damages (pain and suffering and punitive damages).

Let’s breakdown what this means: noneconomic damages compensate patients for very real injuries – such as the loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain and permanent and severe disfigurement.  They also compensate for the loss of a child or a spouse.  Caps on noneconomic damages disproportionately affect women, children, the elderly, the disabled, and others who may not have substantial economic loss (i.e., lost wages or salary) but whose quality of life has been substantially, even permanently diminished.

 

However, it is important to note that any current or future state law addressing non-economic damages would supercede the federal law.

Wrong.  For example, Rep. Gingrey’s home state of Georgia passed a malpractice cap in 2005, and the Georgia Supreme Court ruled it unconstitutional in 2010.  This “Washington-knows-best” legislation would directly override his own state’s constitution.

 

The congressman’s bill has been vetted by non-partisan congressional research scholars, who found it constitutional and in no way running afoul of the Tenth Amendment.

Republicans arguing that the Affordable Care Act (ACA) is unconstitutional because it exceeds power granted to Congress under the Commerce Clause are now caught in a hypocritical bind because H.R. 5 relies on the same use of the Commerce Clause to mandate changes to state tort law.  Rep. Gingrey has been one of the most outspoken advocates urging the Supreme Court to strike down the ACA.  He can’t have it both ways.

But let’s hear what other conservative scholars and elected officials have said about the constitutionality of H.R. 5:

Ken Cuccinelli, Virginia Attorney GeneralThe legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia’s) against the individual mandate of the 2010 federal health-care law.

Randy Barnett, constitution law professor at Georgetown Law Center and senior fellow at the Cato InstituteBut tort law — the body of rules by which persons seek damages for injuries to their person and property — have always been regulated by states, not the federal government. Tort law is at the heart of what is called the ‘police power’ of states.  What constitutional authority did the supporters of the bill rely upon to justify interfering with state authority in this way?

H.R. 5 is one of the most extreme, anti-patient bills Congress has ever considered – and its lead sponsor is using inaccurate and deceptive data to make his case.  We won’t let it stand.