Health Care

This week the House considered H.R. 5: Protecting Access to Health Care Act. This legislation repeals the Independent Payment Advisory Board (IPAB) and pays for that repeal by placing arbitrary caps on medical malpractice claims.

Although I oppose IPAB, I could not vote for this bill because of the medical malpractice provisions attached to it.

Regular readers of this newsletter know that I am a strong supporter of health care reform and voted for the Affordable Care Act in March of 2010. You may also recall that I had a number of concerns about certain aspects of that bill, particularly with regard to the ways it would impact Massachusetts. One of my concerns had to do with the creation of an Independent Payment Advisory Board (IPAB).

IPAB was created to set Medicare reimbursement rates. Traditionally, Medicare payments are based on many factors including efficiency, complexity of medical issues, cost of living in different regions, and, crucially for Massachusetts, whether the provider also bears costs associated with medical education for the future doctors and engages in medical research. Some argue that Medicare should focus ONLY on cost containment without regard for all the other factors that affect the cost of care and that have been traditionally considered. The IPAB was proposed by those who favor a bottom-line only approach to Medicare. The idea is to empower an appointed board to make cuts that an elected official would not support — and this is the basis of my concern.

Supporters of IPAB argue that Congressional authority is not undermined because IPAB cuts can be stopped with a majority vote of both the House and Senate. But the members of IPAB are appointed by the President. Clearly, any President is likely to support suggestions from his or her own appointees and would veto Congressional action against the appointed board. Therefore, it would require the vote of two thirds of Congress to override the proposals of IPAB. This reality underlies my greatest concern: there may be future Presidents who do not support Medicare or the Affordable Care Act as I do.

Despite my serious concerns over IPAB, I felt that I had to vote against HR 5 and here’s why. H.R. 5 also contains medical malpractice legislation that pre-empts state law in all 50 states by capping all non-economic medical malpractice damages at $250,000 whenever a patient is harmed as a result of any health care related action, including problems with medical devices and drugs or mistakes made by doctors or hospital staff. Punitive damages are permitted only with proof that someone acted “with malicious intent to injure claimant” or “deliberately failed to act to prevent unnecessary injury claimant was substantially certain to suffer.” They are also capped at $250,000.

H.R. 5 fails to take into account the level of seriousness of medical errors committed. Even the most egregious cases, such as a transplant patient dying because he or she received an organ with the wrong blood type, are subject to a cap. Interestingly, this bill does not cap economic damages, which are determined based on the lifetime earning potential of the patient. This is troubling and, I believe, unfair because, for example, if two people suffered the exact same medical malpractice, the CEO of a major company would receive much more in economic damages than a bank teller with six young children left behind. A lower wage earner suffering from serious injuries would not require less costly medical care, yet that person would receive far less than a higher wage earner with identical injuries. There is no question that reasonable malpractice reform is needed, but this unfair bill is not the answer.

The bill also establishes a three-year statute of limitations on all “health care lawsuits”. So if a suspected medical malpractice incident does not manifest itself for three years and one day, that patient has no recourse. And the scope of H.R. 5 is far too broad because it applies not just to medical malpractice cases but to all “health care lawsuits”. As a result it shields entities like insurance companies, drug companies and HMOs by also making them subject to the $250,000 caps.

I think it’s worth noting that I am one of 15 Democrats (including Barney Frank) who supported Health Care Reform and who also became co-sponsors of the original, bipartisan bill that would have simply repealed IPAB (H.R. 452). I am certain that a clean IPAB repeal bill would have received several dozen votes from good, solid, progressive Democrats and most of the Massachusetts delegation.

After the addition of a divisive and overly broad proposal to deny most people the ability to seek reasonable compensation for malpractice, only two of the original Democratic co-sponsors voted for H.R. 5. I am personally offended that we were denied a clean vote on an important issue on which there had been broad bipartisan agreement. I voted NO on HR 5 and the entire vote is recorded below: