The United States House of Representatives is scheduled to vote on the Protecting Access to Care Act (PACA) on June 14, 2017. As written, the bill would preempt existing state laws on a range of topics relevant to personal injury lawsuits. If ultimately passed by the Senate and enacted into law, the PACA would likely have a significant and wide ranging impact on future medical malpractice cases in the State of Illinois

Although the official bill summary states that it would only apply to cases where the care at issue was “federally subsidized” in some respect, there appears to be no language in the most recent bill to this effect. The Congressional Budget Office conducted a review of the bill and does not comment on the limitation, suggesting it may have broader applicability. See https://goo.gl/v0axT1.

As a practical matter, the bill would place significant limitations on all medical malpractice lawsuits. For example, the bill would supersede the Illinois statute of limitations so that lawsuits would have to be filed within one (1) year of a claimant’s discovery of the injury at issue, or within three (3) years, whichever is sooner. A lawsuit could not be filed more than three years after the injury.

From the bill, the new statutes of limitations and repose are tolled only upon proof of fraud, intentional concealment or when a foreign body “which has no therapeutic or diagnostic purpose or effect” is found in the injured person. The current version of the bill does not preempt state statutes of limitations with respect to minors.

PACA also has important prospective effects on damage claims in medical malpractice cases. The bill seeks to cap non-economic damages, including but not limited to pain and suffering, disability, and disfigurement, at $250,000. This would supersede court rulings in various states, including Illinois, finding damage caps unconstitutional.

Further, the bill eliminates joint and several liability, making liability several only. This would mean that defendants would only be obligated to pay the portion of a judgment or settlement proportional to that defendant’s fault. There is also language in the bill to alter or eliminate state collateral source rules.

PACA further places significant limits on attorney’s fees, substantially diminishing the incentive for plaintiff’s attorneys to prosecute medical malpractice actions.

The PACA bill also prohibits naming health care providers as defendants in products liability and class action lawsuits involving products that are approved, licensed, or cleared by the Food and Drug Administration.

With respect to the applicability of the bill, the text states that only lawsuits filed after the date PACA became law would be subject to its terms. For existing claims and injuries occurring prior to PACA becoming law, the statute of limitations in effect at the time of the injury would apply.

Although this bill does not have broad ranging support, political experts expect that it will pass the House of Representatives when called for a vote. Standing alone, it is unlikely that the PACA bill would pass through the Senate, but Republican leaders have signaled their intention to include PACA in a larger budget reconciliation bill together with the American Healthcare Act (ACHA).

Over the past several weeks it has looked increasingly likely that there are fifty Republican votes for the ACHA. By using the budget reconciliation process, the Senate would be able to pass both PACA and the ACHA with only 50 votes plus the vote of Vice President Michael Pence.

Given the ongoing press coverage of the multiple scandals surrounding the Trump administration, it is quite likely that PACA will be able to pass through Congress with little public scrutiny or attention from the media. Therefore, if the combined AHCA / PACA bill becomes likely to pass the United States Senate, we expect there may a significant increase in medical malpractice claim filings in the days and weeks prior to its passage as plaintiff’s firms attempt to avoid the cap on non-economic damages and limits on attorney’s fees. If PACA becomes law, it is entirely possible that filings will decrease given the diminished incentives for plaintiff’s attorneys to prosecute medical malpractice cases, particularly those with uncertain liability.

Although PACA will inevitably be challenged in the courts if it becomes law, it is unclear how Federal courts would rule on challenges. The recent national trend has been against damage caps – the Florida Supreme Court, for example, ruled last week that that state’s damages caps were unconstitutional. See North Broward Hospital District v. Kalitan, Florida Supreme Court, June 9, 2017.

As always, we will update you as developments occur.