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    Can the HEALTH Act of 2011 protect you from being sued?

    David Goldberg, M.D., J.D.
    Dermatologist Joe Psoriasis is known throughout the country as an expert in the treatment of psoriasis. He successfully treats some of the most difficult patients with a variety of biologics and chemotherapeutic agents.

    Unfortunately, an inherent risk of treating such challenging patients is the higher risk of medical malpractice lawsuits being brought against him, as compared to a dermatologist not using such treatments. Dr. Psoriasis has now had five such lawsuits filed against him. He is contemplating discontinuing this portion of his practice. Will the HEALTH Act of 2011 provide him with more protection from such lawsuits?

    It is common knowledge that the recent healthcare legislation in the United States is highly controversial. And there are issues within the healthcare legislation that relate to medical malpractice that are rarely discussed.

    Addressing lawsuits

    On Jan. 24, 2011, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011 was introduced in the United States House of Representatives. Seeking "[t]o improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system," the HEALTH Act of 2011 proposed reforms of the available recovery for plaintiffs in "health care lawsuits." The act aimed to "reduce the incidence of 'defensive medicine' and lower the cost of health care liability insurance, all of which contribute to the escalation of health care costs." The act contains three reforms: a cap on noneconomic damages, a cap on punitive damages, and a "fair share rule," which alters the standard distribution payment among multiple tortfeasors.

    First, the act declares that "the amount of noneconomic damages, if available, may be as much as $250,000, regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury." Noneconomic damages are defined as "damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium ... hedonic damages, injury to reputation, and all other non-pecuniary losses of any kind or nature."

    By contrast, economic damages are "objectively verifiable monetary losses incurred as a result of the provision of, use of, or payment for (or failure to provide, use, or pay for) health care services or medical products, such as past and future medical expenses, loss of past and future earnings, cost of obtaining domestic services, loss of employment, and loss of business or employment opportunities." The act places no limitation on "a claimant's recovery of the full amount of the available economic damages."

    Punitive damages

    Second, the act provides that "[p]unitive damages may, if otherwise permitted by applicable State or Federal law, be awarded against any person in a health care lawsuit only if it is proven by clear and convincing evidence that such person acted with malicious intent to injure the claimant, or that such person deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer." However, if a plaintiff satisfies this burden of proof, "the amount of punitive damages ... may be as much as $250,000 or as much as two times the amount of economic damages awarded, whichever is greater." Furthermore, "[t]he jury shall not be informed of this limitation."

    Finally, the act provides that "[i]n any health care lawsuit, each party shall be liable for that party's several share of any damages only and not for the share of any other person. Each party shall be liable only for the amount of damages allocated to such party in direct proportion to such party's percentage of responsibility." Thus, the act jettisons the commonly used doctrine of "joint and several liability" under which "[l]iability may be apportioned either among two or more parties or to only one or a few select members of a group, at the adversary's discretion." Leading legal scholars have discussed the "fair share" rule as way "to eliminate any unfair disadvantage that defendants with 'deep pockets' may have in multiple-defendant cases."

    In total, these reforms represent a substantial limitation on the discretion of juries to award an injured plaintiff damages for intangible harms such as emotional suffering or to punish especially egregious conduct. Accordingly, the act has generated renewed interest in tort reform. There may be some hope for Dr. Psoriasis.

    David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey; director of laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.

    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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