Cohen Offers Amendment to HEALTH Act in Judiciary Committee Markup
WASHINGTON, D.C. – Congressman Steve Cohen (TN-9) today offered an amendment to the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011 – a medical malpractice reform initiative – at a House Judiciary Committee markup. The Cohen amendment would remove the $250,000 cap on punitive damages for wrong-site, wrong-side, and wrong-patient procedures, and when a foreign object is left inside the patient. This markup was a continuation of a markup that began last week.
“My amendment would exempt from the caps on non-economic and punitive damages any malpractice cases brought because of a wrong site or wrong patient surgery, and instances where a foreign object is left in a patient during a surgery,” said Congressman Cohen. “You don’t have to be a doctor to know that these cases constitute clear malpractice. These are the ‘never’ cases. There’s no gray area here. And the consequences for patients that suffer at the hands of these horrible mistakes can be devastating. To limit patients’ recovery in this way is unfair to these victims and would do nothing to ensure that these horrible tragedies do not occur in the future.”
The HEALTH Act dramatically limits a victim’s ability to recover punitive damages and damages for pain and suffering. First, the bill imposes a heightened standard for the recovery of punitive damages, requiring either clear and convincing evidence that the defendant acted with malicious intent to injure the victim, or that the defendant understood the victim was substantially certain to suffer unnecessary injury yet deliberately failed to avoid such injury. Even if a claimant can meet this burden, punitive damages are limited to two times the amount of economic damages or $250,000 -- whichever is greater.
The Cohen Amendment would exempt wrong-site or wrong-patient surgeries from the scope of the bill. The amendment would also exempt foreign objects left in the patient during surgery from the scope of the bill. These “never” events should not be limited to a $250,000 cap on non-economic damages or punitive damages.
According to the Joint Commission Center for Transforming Healthcare, part of The Joint Commission which accredits hospitals, as many as 40 cases of wrong-site or wrong-patient surgery are reported every week in the United States.
In addition, the Journal of American Medicine reports that there are 1,500 incidents of surgical tools left in patients each year. About two-thirds of the surgical objects left behind are sponges, which can lead to pain, infection, bowel obstructions, healing problems, longer hospital stays, additional surgeries and in rare cases, death. Unfortunately, the Cohen Amendment failed to pass.