By Steve Harman

How would it feel, while filling out the usual paperwork in the waiting room, to sign a waiver that you won’t sue your doctor?

Under a pair of bills recently introduced by Republicans in the U.S. House, that is what would happen without your knowledge or consent. Congress is seeking to pile federal regulations pertaining to medical malpractice on top of 40 years’ worth of Montana laws that already protect doctors.

Steve Harman
Steve Harman

Under H.R.1215, a benevolent-sounding bill titled “Protecting Access to Care Act of 2017,” and Title V of H.R. 277: “Reforming Medical Liability Law,” patients would surrender even more rights than they have already have given up under state law. The bills would transfer jurisdiction to federal courts, depriving patients of the right to present their cases in state courts in front of a jury of their peers.

Under the proposed bills, patients would be required to submit their case to a panel of three doctors. That panel would decide whether the doctor’s conduct complied with certain professional rules. If the panel determined that the rules of practice were followed, the case would be dismissed, unless the patient could overcome the finding by “clear and convincing evidence,” an onerous burden of proof.

If the patient were able to overcome the panel’s finding, then the case could proceed to a jury trial, but the panel’s adverse findings would be presented to the jury. Additionally, the panelists would not be subject to cross-examination by the patient’s attorney—another important right patients would lose under the new legislation.

Other notable changes include the following: a severe reduction of the patient’s legal fees, but not the doctor’s legal fees; a cap on non-economic damages at $250,000; and immunity to doctors who use defective products or prescribe drugs that harm patients.

The legislation would trump state laws where they are in conflict and defer to state laws that are more restrictive. This is a one-two punch, forcing patients to fight with both hands tied behind their backs.

From 1977 to the present, the Montana Medical Association has successfully lobbied or supported 46 statutes that restrict a patient injured by malpractice from obtaining full legal redress, a right guaranteed to us by the Montana Constitution. In fact, in 2009, the MMA boasted that, when compared to other states, Montana’s tort reform “is qualitatively ‘better’ than measures in most states.”

In 2016, over 400,000 patients died from medical errors nationwide, while 40,000 people were killed in car crashes. Medical errors are the third-leading cause of death in the U.S., behind heart disease and cancer. Even so, full legal redress is available to victims of car crashes in Montana, but not for victims of medical malpractice.

Forty years ago, the Montana’s Legislature embarked on tort reform in medical malpractice. Frivolous lawsuits and huge increases in medical malpractice insurance premiums were purportedly driving doctors to quit practice or leave the state. In response, the Montana Medical Legal Panel was created. The panel screens all malpractice claims before a lawsuit is filed in state District Court.

The panel consists of three lawyers and three doctors. A new panel is selected for each case. The doctors are chosen from the same specialty area as the defendant doctor. The lawyers typically follow the lead of the doctors. The proceedings at the panel are confidential, no transcript is made, and the decision is not binding or admissible in court. The proposed bills would change all of that—the findings would be binding and admissible in court.

Most of the decisions of the Montana panel favor the doctor. The purpose of the panel is to weed out frivolous claims. In general, the panel works by encouraging patients and their lawyers not to pursue a weak case. Records show that the number of practitioners has tripled in the past 30 years, while the number of malpractice claims has steadily decreased.

In 2015, the panel recorded 114 claims, but only 52 went to a hearing. Of those, only three went on to a lawsuit. In the past decade, 18 cases have gone to trial. Only two have resulted in verdicts in favor of the patient. Despite the success of the panel, the MMA has continued to press for more protection.

In recent years, the Montana Legislature has enacted many more laws that restrict a patient’s rights of recovery. In other words, it is already an uphill battle to sue for medical malpractice in Montana. So why should the feds pile on more regulations? Isn’t Congress “punishing” access to affordable health care, rather than “protecting” such a right? Who will hold doctors accountable for their errors?

Conservatives promised to cut federal regulations and to return power to the states. Isn’t tort reform at the federal level the height of hypocrisy? Tell Congress we have enough rules and regulations and to stay out of our business. Piling on regulations that are more restrictive than those we already have in Montana erodes our right to full legal redress.

Steve Harman, who practices law in Billings, represents patients harmed by unsafe medical practice. He is a member of the American College of Trial Lawyers. He also serves on the faculty of the University of Montana Law School ‘s “Advanced Trial Advocacy School.”