February 20, 2004
Re: CU’s Opposition to S. 2061, a medical malpractice bill aimed at the most vulnerable patients – women and their babies
Consumers Union asks you to oppose S. 2061, the so called “Healthy Mother and Babies Access to Care Act of 2003,” which unfairly targets women and children who have been injured as a result of medical malpractice. S. 2061 dismantles many of the legal remedies available to innocent victims of negligence due to obstetrical and gynecological (Ob/Gyn) services and products. The bill does so under the false premises that it will reduce malpractice insurance rates and provide greater access to Ob/Gyn services for women. We fail to see the connection between denying rights to bona fide victims of medical malpractice and increasing access to medical services.
In fact, S. 2061 hurts the most vulnerable people in our country – women and their children – while doing nothing to address the true problem of access to affordable, quality healthcare. In addition:
● S. 2061 places a 1 to 3 year statute of limitations on when lawsuits can be brought, even though many injuries due to Ob/Gyn services and products do not manifest themselves within 1 to 3 years. Take DES injuries for example. DES was given to millions of pregnant women from 1938 to 1971 to ensure healthy pregnancy. However, daughters of women who took DES suffer from increased rates of cervical cancer, infertility, miscarriage, and structural changes to their reproductive organs. Their injuries did not manifest themselves within 1 to 3 years after their mothers took DES;
● S. 2061 prevents injured children from seeking legal remedies when they turn eighteen years old, even if their parents or guardians refused, failed, or were unable to so on their behalf.
● S. 2061 caps non-economic damages at $250,000, regardless of how egregious the injuries to women and their children. For example, an 18 year old woman who loses her first child and fertility due to negligent Ob/Gyn services or products would not be entitled to more than $250,000 in damages for pain and suffering and loss of the ability to bear children;
● S. 2061 caps punitive damages at $250,000, regardless of how egregious the action by providers of Ob/Gyn services and products. Take Alexandra Katada’s doctor for example. Her doctor contorted and stretched her spine at birth, destroyed her nerves, and left her partially paralyzed. Alexandra died at seven months old. Three other babies in the doctor’s care also died. Under S. 2061, the doctor and the doctor’s affiliates would not be liable for more than $250,000 in combined punitive damages;
● S. 2061 places injured mothers and their children at risk of not receiving damages from insolvent defendants, by abolishing joint and several liability and allowing periodic future payments. Under S. 2061, a woman or child receiving periodic payments from a hospital facing bankruptcy may not be fully compensated.
● S. 2061 forces injured mothers and their children to pay damages from their own insurance proceeds, through its collateral source rule, despite the fact that they were injured by someone else’s negligence; and
● Finally, S. 2061 infringes upon the rights of responsible states that have addressed their malpractice insurance problems without imposing unreasonably low caps on patients.
S. 2061 would deprive the most vulnerable victims of their right to seek legal remedies when they are seriously harmed, while doing nothing concrete to address the problem of access to medical services for women and their babies. We ask you to oppose this legislation when it comes up next week on the Senate Floor. Please contact Sally Greenberg or Mister Phillips at (202) 462-6262 for more information.
Senior Product Safety Counsel
Esther Peterson Legislative Counsel