Love him or hate him, there’s one thing that we can’t deny. The Trump presidency has provided us with a constant stream of news, both positive and negative, that has been difficult to tear our eyes away from. I’m sure I’m not the only one chuckling at his all-caps tweets or cringing at the video of him shoving the Prime Minister of Montenegro out of the way.
This news as of late has been focused on the Trump Administration’s 2018 fiscal budget proposal that aims to “roll back burdensome regulations” to stimulate the creation of American jobs. With funding cuts to the EPA, FDA, CDC and many others, it seems that Trump may very well keep his frightening promise of freeing corporate America from the restraints put in place by Obama-era regulations. Every media outlet I tune into is abuzz with news of the slew of government agencies who are set to lose funding. And they rightly should be, since these proposed cuts could greatly impact the ability to clean up hazardous waste sites, conduct groundbreaking medical research, and even impact the enforcement of environmental regulations.
But, there’s one aspect of his budget proposal that should be making more headlines than it is. The Trump Administration is calling for tort reforms that would essentially remove a critical safety net that has so far been supported by the civil justice system. This system allows individuals to file tort claims for any personal injury they may have sustained. The proposed reforms, however, would flip it on its head and skew the medical liability actions in favor of physicians and corporations rather than the patients who have been adversely affected. Without this safeguard in place to serve as the fallback for when deregulation fails or is no longer effective, the health and safety of millions of Americans could derail from the already rickety tracks they’re traveling on.
One aspect of the proposed tort reform is the call for a $250,000 malpractice damage cap that the administration is claiming would save the Department of Health & Human Services about $32 billion over the next 10 years. For injured parties, this type of limit makes it more difficult for plaintiffs to receive a jury trial for the damages they’re seeking, since lawyers are deterred from taking their case in the first place. It often costs around $200,000 “just to prepare a med-mal case for trial” and more often than not, the seeking of non-economic damages, or the pain and suffering endured by the plaintiff, is what enables a lawyer to earn a fee. Furthermore, those who have opposed tort reform say that it harms the victim twice – once through negligence, or the failure to act in accordance with the standards of medical care, and then again when the plaintiff receives damages that are less than deserved.
In addition to the damage cap, the tort reforms would also create a statute of limitations of three years for malpractice suits. This is good in theory, since it creates a level of efficiency for the judicial process, but it’s harmful to plaintiffs who are seeking reparations for illnesses or injuries that have taken longer than three years to develop. A prime example of this is the asbestos-causing cancer mesothelioma, which saw its mortality rate peak in 2010 for U.S. cases. Since this aggressive illness can take anywhere from 10 to 40 years to develop, those who were exposed to asbestos fibers common in building materials up until 1989 would have no hope in seeking the reparations they deserve.
In conjunction with the tort reforms included in the budget proposal, the recently passed Fairness in Class Action Litigation Act only allows malpractice suits to move forward in court if every plaintiff has suffered an injury of “the same type and scope.” So, if one woman was affected by talcum powder via self-application, and another had been using it on her infant daughter, who later developed ovarian cancer, neither would be able to seek justice by banding together. Therefore, it’s highly unlikely that you would be able to give the same classification to every single injury seeking damages.
The bill would also require lawyers to follow a certain criteria for their fees, making them less likely to even approach a class action litigation in the first place. So, it’s safe to say the “fairness” of this new litigation act seems only to be fair for the defendants facing legal consequences for their actions. If Trump’s America exists to benefit corporations, this would be the proof.
If the main goal of Trump’s tort reform inclusion in the budget proposal is to lower healthcare costs, then it would be wise for the administration to step back and take a look at the findings of the National Bureau of Economic Research. According to one study, the tort reform must impact the entire medical practice, not just malpractice, in order to see a reduction in healthcare costs. The cost of premiums are likely to see only a 1-2% reduction, and further conclusions by bioethicist Zeke Emanuel indicate national healthcare spending would only see a decrease of about 0.5%.
Although it’s highly unlikely that a budget proposal so starkly contrasting that of the previous administration is likely to pass, keep in mind the possible ripple effect that may occur if it slides through the House and Senate. Perhaps even more harrowing than the potential for environmental regulations to be stripped away is the knowledge that if you sustain an unwarranted injury because of this deregulation, you may not even be able to receive the reparations you both want and deserve.
America is traveling on a rusted railroad track at what seems like breakneck speeds. Let’s hope we choose to stay the course, lest we be derailed.