H.R. 1215: Obliterating Access to Justice for Severe Medical Negligence
Linda Lam & Michael Schrag, Girard Gibbs, LLP
On March 6, 2017, in a federal courtroom filled with veterans and family members of veterans, Judge Michelle Burns took the bench to read her findings in the medical malpractice action that Steve Cooper, an eighteen-year veteran of the US Army, brought against the VA hospital in Phoenix for failing to diagnose his cancer.
Steve Cooper’s Story
Steve was 40 years old when he went to the VA hospital in Phoenix for a screening evaluation. A nurse practitioner conducted a physical exam and found two abnormalities: his prostate was both enlarged and asymmetrical. Contrary to established practices, the nurse practitioner told Steve that these findings were not concerning, and failed to order any follow-up testing. She would later testify at trial that she did not personally believe in those practices, even though the follow-up testing is required by normal standards of practice.
Nearly a year later, Steve returned to the VA hospital and was examined by an internist-- who noted the same abnormal findings. Realizing the urgency of the situation, the internist immediately sent Steve for follow-up testing and referred him to a urologist. A biopsy revealed that Steve had Stage 4 prostate cancer, which by then had spread to other parts of his body.
Throughout the next several years, Steve suffered through a litany of surgeries and procedures: a radical prostatectomy to remove his prostate and surrounding nerves; urinary sphincter surgery; bladder stone surgery; radiation therapy; chemotherapy; and chemical castration.
Steve continues to suffer to this day. Although previously a small business owner, he is now unable to work. He is unable to have children. He has experienced depression and impaired mental health. Steve’s doctors estimate that he has approximately five years to live. He will have to endure extensive medical treatments for the remainder of his life.
Judge Burns’ award will allow Steve to live more comfortably in his last years and provide for his wife, Rima.
Justice for Steve: The Judgment
The tension was palpable as Judge Burns read her findings to the packed courtroom. The Court found the VA nurse practitioner was negligent and that had Steve’s cancer been diagnosed 11 months earlier – when the nurse practitioner initially detected abnormalities in his prostate – it would have been curable.
Judge Burns’ findings culminated with an award to Steve of $2 million for his pain and suffering. His supporters applauded and wept after Judge Burns finished her ruling and left the bench. Steve, too, felt that the civil justice system had worked as it was meant to.
Steve’s case achieved justice. Judge Burns’ award will allow Steve to live more comfortably in his last years and provide for his wife and mother after he dies. The VA was publicly exposed for the poor care it is providing to veterans and held accountable for those actions. Others who suffered or who will suffer similar fates at the hands of the VA may have meaningful recourse as a result of this case. The award will motivate the VA to provide our veterans better care, meaning the effects of Steve’s case will reverberate for years to come.
Steve Cooper received justice, but H.R. 1215 penalizes veterans and other victims of medical practice
Steve Cooper’s Case and Others like it, May Soon Cease to Exist Under H.R. 1215
H.R. 1215, a proposed bill that will be debated in the House of Representatives in the coming weeks, was given the title “Protecting Access to Care Act of 2017.” In fact, it accomplishes the exact opposite of what its name implies.
Some of the key restrictions H.R. 1215 imposes on future cases like Steve’s include:
· A federally-mandated $250,000 “cap” on compensation for pain and suffering in all 50 states, even in the states where such caps are unconstitutional.
· A federally-mandated statute of limitations, which would severely limit the time period a victim has to file a meritorious lawsuit, and making it more restrictive than the current laws in most of the 50 states.
· Federal interference with a victim’s ability to hire an attorney and negotiate fees, which would likely discourage attorneys from filing medical malpractice cases.
H.R. 1215 would not “improve patient access to health care services,” but rather, would shield health care providers from the consequences of acts of severe negligence – including ignoring clear signs of prostate cancer in a 40-year-old man. Under H.R. 1215, Judge Burns would have been prevented from granting Steven Cooper any award greater than $250,000 for his pain and suffering. Moreover, it would dampen the incentive for institutions like the Phoenix VA to improve their healthcare delivery systems to avoid tragedies like the one that will ultimately end Steve’s life. H.R. 1215 will so severely impair victims’ abilities to hold medical providers accountable for negligence through trial that medical malpractice actions will effectively be eliminated. H.R. 1215 is not just un-American, H.R. 1215 is just plain wrong.
Note: H.R. 1215 is one of several bills including H.R. 985 (which would kill class actions) currently being railroaded through the GOP-controlled House, designed to restrict access to the courts