As the regulatory process to implement the 2010 health care reform law continues at its laborious pace, Congress forges ahead with even more legislation that could affect emergency medicine.

Medical liability reform is the topic of several proposals currently before the U.S. House of Representatives and the Senate. For the first time in years, there is a chance that our nation will adopt a change in the medical liability landscape that could be favorable to emergency physicians, our patients, and our on-call colleagues.

ACEP has been active in getting many of these proposals on the Congressional agenda, thanks in part to our members’ advocacy efforts and our diligent and influential staff members in our Washington, D.C., office.

As of early March 2011, the following proposals were in various stages of being considered.

Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011 (HR 5)

Sponsored by Rep. Phil Gingrey (R-Ga.), Rep. Lamar Smith (R-Tex.), and Rep. David Scott (D-Ga.), this bill currently has about 97 cosponsors and was referred to the House Judiciary and Energy and House Commerce committees. The House Judiciary Committee has already completed action on the bill, although it has amended the bill to repeal the collateral source rule, which was an important component. It is uncertain whether the Energy and Commerce Committee will take action on HR 5 or whether it will go to the House floor, bypassing that committee. Its companion in the Senate, S 218, was sponsored by Sen. John Ensign (R-Nev.) and has one cosponsor. It has been referred to the Senate Judiciary Committee. ACEP fully supports the bill as introduced, including the collateral source provision.

Key features include:

• Limits noneconomic damages to $250,000.
• Limits punitive damages to the greater of either two times the economic damages or $250,000.
• Considers each party’s liability in direct proportion to responsibility.
• Limits attorney contingency fees.
• Allows introduction of collateral source benefits.
• Sets statute of limitations at 3 years after date of injury manifestation or 1 year after injury discovered (with exceptions).
• Denies punitive damages in the case of products approved, cleared, or licensed by the FDA.
• Allows periodic payments of future damage awards.

Health Care Safety Net Enhancement Act of 2011 (HR 157)

Sponsored by Rep. Pete Sessions (R-Tex.) and Rep. Charlie Dent (R-Pa.), this bill has been referred to the House Energy and Commerce Committee. The legislation proposes to amend the Public Health Service Act to deem a physician or physician group of a hospital or emergency department as an employee of the Public Health Service for the purposes of any civil action that may arise from providing EMTALA-related services beginning Jan. 1, 2012. ACEP is particularly interested in enacting this legislation as it specifically addresses the unique environment of the ED. ACEP is working with a coalition of on-call specialty societies to achieve this goal. Our current focus is on increasing the number of cosponsors, working with the House Energy and Commerce Committee to gauge its level of interest, and finding a Senate sponsor. If HR 5 were to stall in the Senate, which is a distinct possibility, we hope the Senate may be willing to consider a more targeted liability bill, such as HR 157.