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45 J. Legis. 81 (2018)
The Unconstitutionality of the Protecting Access to Care Act of 2017's Cap on Noneconomic Damages in Medical Malpractice Cases

handle is hein.journals/jleg45 and id is 81 raw text is: 










     THE UNCONSTITUTIONALITY OF THE PROTECTING
 ACCESS TO CARE ACT OF 2017'S CAP ON NONECONOMIC
        DAMAGES IN MEDICAL MALPRACTICE CASES


                               Kaeleigh P. Christiet

                                  INTRODUCTION

    With the support of the Trump Administration,1 the Protecting Access to Care
Act of 2017 (PACA) passed the House of Representatives by a vote of 218-210 on
July 28, 2017. This legislation, proposed by Representative Steve King (R-IA-4),
establishes provisions governing health care lawsuits where coverage for the care
was provided or subsidized by the federal government, including through a subsidy
or tax benefit.2 Those whose health plans fall under Medicare and Medicaid will be
affected by this legislation.3 Likewise, veterans, servicemen, and their families will
also be affected.4 Further, those who have received their health care under an Af-
fordable Care Act Exchange will be subjected to the provisions of this healthcare
reform, as well as those with any insurance plan - including any employer-spon-
sored plan - that receives any tax credits from the federal government.5
    The provisions of the Protecting Access to Care Act include a three-year statute
of limitations on medical malpractice cases, constraints on plaintiff's attorney fees,
and joint-and-several liability with a fair share rule where a defendant in a lawsuit
would only be liable for damages equal to his percentage of responsibility in the neg-
ligence.6 However, the most controversial provision in the bill is that which places
a cap on a plaintiff's noneconomic damages at $250,000 in medical malpractice
suits.7 Whether the patient harmed by the negligence of a medical professional or

    t J.D. Candidate, Notre Dame Law School, 2019; B.A., The George Washington University, 2016. I
would like to thank the members of the Notre Dame Journal of Legislation's editing team for their hard work
and assistance in this endeavor. I also would like to thank my family and especially, my grandparents, for all
their continued belief, encouragement, and support.
    1 Rep. Steve King, et al., H.R. 1215 Protecting Access to Care Act of 2017, THE WHITE HOUSE (June
13, 2017), https://www.whitehouse.gov/the-press-office/2017/06/14/hr-1215-%E2%80%93-protecting-access-
care-act-2017.
    2 Protecting Access to Care Act of 2017, H.R. 1215, 115th Cong. (2017).
    3 Joanne Doroshow, Congress Moves to Punish Anyone Using the ACA and Medicine, HUFFINGTON
POST (Feb. 26, 2017), https://www.huffingtonpost.com/entry/congress-moves-to-punish-everyone-using-the-
affordable us 58b34240e4b0e5fdf6197405.
    4 Id.
    5 Wendy E. Parmet & Elisabeth J. Ryan, Not Your Grandfather's Preemption: Proposed Federal
Preemption of State Medical Malpractice Cases, PUB. HEALTH LAW WATCH (Aug. 23, 2017),
https://www.publichealthlawwatch.org/blog/2017/8/23/not-your-grandfathers-preemption-the-imposition-of-
federal-limits-on-state-court-medical-malpractice-cases.
    6 H.R. 1215, supra note 2.
    7 Bill Corriher, The Other Terrible Health Care Bill Pending in Congress, CTR. FOR AM. PROGRESS

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