New Legislation Places Children with Birth Injuries At Risk

If you see a doctor, get medical imaging, use a medical device, or get prescription medication – if you use medical goods or services in any way – a new bill is expected to go to the House of Representatives HR1215 - How Medical Malpractice Tort Reform Legislation Affects Kids with Birth Injuries for a vote next  week that will impact you. The bill, H.R. 1215, proposes that non-economic damages (damages that don’t relate to lost income and related costs)  in lawsuits against ‘healthcare providers’ be limited to $250,000, and has the potential to affect vast swaths of the U.S. population. In other words, this cap would substantially decrease how much a person could recover from a lawsuit if they were injured – and this includes birth injuries.

The bill would override existing state laws about damage caps, even in states that have Constitutional provisions that say that it is unconstitutional to limit damages. Damage caps limit how much money a person can recover in a lawsuit. What exactly does all of this mean for parents of children with birth injuries? What does it mean for expectant parents?

Not Just a Medical Malpractice Law

This bill is slated to apply to a number of services, not just doctors and hospitals. The bill applies broadly to:

  • Hospitals
  • Medical staff
  • Insurance companies
  • Biotech companies
  • Pharmaceutical corporations
  • Medical device manufacturers
  • Compounding pharmacies
  • For-profit nursing homes

This means that the bill will be much broader than any previous state medical malpractice laws, as it would be a federal law, applying to all U.S. states.

Non-Economic Damages Limited to $250,000

The bill proposes that non-economic damages in lawsuits against healthcare providers be capped at $250,000. In other words, it doesn’t matter how badly a person was injured – the maximum they can receive for non-economic damages is $250,000, even if that doesn’t cover the cost care they might need because of the injury itself.

Fewer Resources for Therapy and Care = Decreased Quality of Life

Cost of Care

Children with birth injuries often need extensive medical care, including occupational and physical therapy, speech therapy, medications, additional screenings, feeding tube equipment and supplies, and attendant care. This kind of care can very quickly become very expensive.

For example, according to one care provider website, the cost of in-home care is between $3,360 and $5,760/month or much more. Other estimates vary, but costs can very quickly run into the thousands over a weekly or monthly period. These estimates don’t take into account the additional cost of care for specialized in-home care for children with multiple or complex disabilities, who may need the help of more specially-trained nursing staff, and don’t take into account other medical costs – these are just the costs of an in-home aide.

By limiting how much a family can recover, H.R. 1215 would directly impact the child’s quality of life. Services, therapy, and community supports all have associated costs. By imposing a federal ‘damage cap,’ the bill would decrease the resources available to families of children with birth injuries to obtain the services their child needs.

Statutes of Limitations

Parents of children with birth injuries often begin to suspect that something at birth may have caused their child’s developmental delays when their child starts missing developmental milestones. In some cases, this may be early – even within the first few years – but in other cases, they begin to suspect it when the child begins school and begins struggling academically. Right now, each state has its own ‘statute of limitations’ – the timeframe in which their birth injury lawsuit can be brought to court. In the context of birth injury, this new bill would impose a strict statute of limitations of a maximum of 3 years after birth (with very, very limited exceptions) – a short enough timeframe that developmental delays may not even be seen yet. This puts families at a disadvantage, barring them from the courts in a short timeframe.

How to Stop H.R. 1215

Parents of children with birth injuries can call or email their Representatives expressing concern about the contents of this bill. This isn’t limited to just birth injury law – if you know a person with a claim related to pharmaceutical or medical device law, reach out to them too, and ask them to contact their government officials as well. For example, the phone number of Michigan Representative Bill Huizenga is 202.225.4401, found here on the listing of Representative Contact Information. You can also call your Senators using the information found in the U.S. Senate Directory.

mednegpercent Let them know that you consider this bill to be an unfair limitation on resources your families may need, and that it is counterproductive to try to save money by cutting off legal access to the courts like this. Mention that the total cost of medical negligence lawsuits in the U.S. is only 0.2% – a drop in the bucket of total U.S. healthcare costs, and that our efforts would be better spent on other reforms like reducing medical errors (the #3 cause of death in the U.S.) – not those that take away resources from those who need it most.

Finally, be persistent and make your voice heard.

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