“Medical Malpractice Reform gets Iowa back in the game of recruiting and retaining physicians to care for Iowans!” Governor Kim Reynolds tweeted on February 16. She had just signed House File 161, a bill limiting damages in medical malpractice lawsuits.

Reynolds waited a long time for that moment. Two years running, similar proposals failed to reach her desk for lack of support in the GOP-controlled state House.

The bill signing capped one of the most dramatic debates in recent Iowa political memory.

It’s rare for more than a handful of Republican lawmakers to go on record against any bill that’s a priority for leadership. Not only did seventeen GOP lawmakers oppose passage of House File 161, six members of the majority party explained their objections during the hours-long debates in the House and Senate on February 8.

In addition to exposing divisions within Republican ranks, some remarks from the legislative proceedings may become important if the new law is challenged in court.

HARD CAPS ON DAMAGES FOR PAIN AND SUFFERING

Damages awarded in medical malpractice cases usually fall into two categories. Economic damages cover monetary losses, such as the cost of medical treatment, property damage, and lost income or earning potential. Non-economic damages compensate victims for losses that can’t be quantified such as pain, suffering, inability to enjoy normal activities, or loss of consortium because a spouse was severely injured.

Since 2017, Iowa has capped non-economic damages at $250,000 for medical malpractice cases where the victim did not suffer “substantial or permanent loss or impairment of a bodily function, substantial disfigurement, or death.”

The new law sets a hard cap of $1 million for non-economic damages in the most severe medical malpractice cases, or $2 million if a hospital was responsible for the error that led to “substantial or permanent loss or impairment of a bodily function, substantial disfigurement, or death.” It adds a new cause of action (loss of pregnancy) to the list of harms that would allow the victim of a medical error to sue for more than $250,000. It also allows patients to keep all punitive damages, though such damages are rarely awarded in medical malpractice cases.

Beginning in 2028, the maximum amount of non-economic damages will increase by 2.1 percent a year. The bill’s floor managers described that provision as a way to account for inflation, but the percentage increase is fixed and not tied to the inflation rate, which could be substantially higher. In both the House and the Senate, the majority rejected Democratic amendments that would have prohibited insurers from increasing medical malpractice premiums before 2028, and would have limited premium hikes after that year to 2.1 percent annually.

House File 161 expands the definition of economic damages, to include the value of child care or dependent care, if a primary caregiver to a child or disabled adult suffered death or severe injury. But House members rejected an amendment offered by Republicans Brian Lohse and Megan Jones, which would have increased the damage cap to $5 million and defined the death of “a viable, unborn child” as economic damages, not subject to any caps.

BROAD DISSENT AMONG REPUBLICAN LAWMAKERS

During the six-plus years of Iowa’s Republican trifecta, few lawmakers from the majority party have dissented on high-profile bills. Just six Republicans voted against sweeping changes to collective bargaining in 2017. Two opposed changes to workers’ compensation that year, and a different two voted against a wide-ranging pro-gun bill. Six cast no votes on the 2018 bill that would have banned most abortions.

Republicans now enjoy historically large Iowa legislative majorities. But caucus members also appear more willing to buck leadership. The medical malpractice bill marked the second time this year that a significant number of GOP legislators voted against a priority for Reynolds. And while none of the twelve Republicans who voted against the governor’s school voucher plan spoke during House or Senate debate, six members of the majority stood up on February 8 to explain their thinking and urge colleagues to reject the medical malpractice bill.

In all, seventeen Republican lawmakers opposed House File 161. The twelve in the House included four serving their first term: Zach Dieken, Helena Hayes, Brad Sherman, and Luana Stoltenberg. They were joined by Eddie Andrews, Mark Cisneros, Thomas Gerhold, Jones, Lohse, Anne Osmundson, and Jeff Shipley. Lohse, Jones, Cisneros, Hayes, and Sherman all spoke during the February 8 debate.

GOP State Representative Stan Gustafson accidentally pushed the wrong button, so was recorded as a yes vote on final passage. But he was known to oppose damage caps and put a note in the House Journal indicating he had intended to vote no.

Five Republican senators voted against House File 161 in the upper chamber: Mark Lofgren (who spoke several times during debate and had previously emailed his case against the bill to all legislators), Kevin Alons, Sandy Salmon, Jeff Taylor, and Cherielynn Westrich. Of note: as members of the Iowa House before running for Senate last year, Salmon and Westrich had helped keep similar bills from passing in the lower chamber.

Also worth noting: there was little overlap between the school voucher holdouts and those who opposed capping medical malpractice damages. Only Lohse voted against both bills. However, some who rejected the malpractice bill had long resisted “education savings accounts,” including Jones.

The wide-ranging Republican dissent is even more striking when one considers the lobbyist declarations on House File 161. Some of the state’s most powerful business or conservative advocacy groups—such as the Iowa Association of Business and Industry, Iowa Chamber Alliance, Americans for Prosperity, and National Federation of Independent Business—joined a large number of insurance and medical groups backing the bill. Only labor organizations and a few groups representing attorneys registered against capping damages. The easy path for a Republican lawmaker was to vote yes.

Democratic ranks were more united. No member of the Senate minority supported House File 161. Although several House Democrats with ties to the medical community might have voted for legislation with a higher damage cap in the range of $5 million, only one voted for the proposal on the table: Ken Croken, who formerly worked for a hospital system in the Quad Cities.

A MISMATCH BETWEEN GOALS AND FACTS

It’s typical for members of the opposing party to challenge the majority’s case for a controversial bill, and quite a few Democrats did that during the debates on House File 161. (You can watch the whole House debate here, and Senate debate here.)

What was more unusual—unprecedented in the sixteen years I’ve followed Iowa legislative happenings—was hearing multiple Republicans refute their own party’s talking points.

The two floor managers, State Representative Ann Meyer and State Senator Jason Schultz, framed damage caps as a way to address declining access to health care, particularly in rural areas. During her opening remarks, Meyer said Iowa ranks 44th in doctors per capita, and even lower for some specialties like OBGYNs. Some training programs had closed because of the malpractice environment, she asserted.

For Meyer, the bill balanced the need to compensate people with medical injuries with the “need to keep our health care industry stable and intact, especially in rural Iowa.”

She expressed empathy for victims of malpractice. One of her 5-year-old twin sons died due to a medical error. Nothing will bring him back, and more than two decades later, she thinks about it every day. Her other son is in medical school and she would love for him to come back to practice in Iowa. We cannot continue to have unlimited penalties, she told colleagues, because 3.2 million Iowa residents deserve care.

During her closing remarks on the bill, Meyer revisited those points, adding that “Iowa has a target on its back for out-of-state predatory lawyers.” By way of example, she mentioned one case where a lawyer from Michigan (which enacted malpractice damage caps years ago) represented Iowa plaintiffs who were later awarded $97 million in damages. She characterized the bill as providing “access to care”; by giving certainty to insurance companies, it will change minds of health care providers thinking about careers in Iowa.

Schultz used similar rhetoric in his opening comments for the Senate debate. He claimed the bill was designed to keep “our health care system whole, that gives us choices in health care and quality services in rural Iowa.”

In a comment that provoked outrage from some opponents, he said “a civil action isn’t supposed to be a lottery for anybody. It’s compensation for a loss. It’s not to produce a windfall of unearned wealth.” (Hours later, Schultz claimed he wasn’t characterizing victims of medical errors as lottery winners, but was talking about wealthy attorneys who try malpractice cases.)

Schultz argued that jurors may be swayed by “subjective feelings” and are not responsible for applying the law, or considering societal impacts or costs of a verdict. But legislators “must consider these implications,” balancing “proper compensation for injured people with access for Iowans to health care at reasonable costs.” He asserted that larger damage awards in Iowa malpractice cases were increasing costs for health care providers.

Shortly before the Senate vote on final passage, Schultz said Iowa needs to put “guardrails” in front of untrained juries, who “can be manipulated emotionally” by trial lawyers with information they “want to believe is true.”

Legislators from both parties disputed those statistics. Republicans Lohse and Jones delivered two of the most powerful rebuttals.

Lohse highlighted “indisputable” and “independently verifiable” facts. For instance, “Iowa’s insurance climate is actually very stable. We have some of the lowest rates in the country,” and they have remained steady. Iowa now has more insurers than it has for several years. If this were “such a bad environment” for medical malpractice, insurers would not be entering the market. Time after time, Iowa has been ranked one of the best places to practice medicine in the country, number three in one report published last year.

Although Meyer had portrayed jury verdicts as out of control, Lohse noted that of Iowa’s ten medical malpractice jury verdicts in 2021, nine were defense verdicts, meaning the plaintiffs received zero damages. The one successful plaintiff received several hundred thousand dollars. Similarly, thirteen of Iowa’s fifteen jury verdicts in malpractice cases in 2022 were defense verdicts, again meaning that the plaintiff received zero damages.

In one case, the plaintiff received hundreds of thousands of dollars. The other was a $97 million verdict from Johnson County. Lohse understands insurance industry claims adjusting, because “I used to do that job.” He urged colleagues to remember that the same claims adjuster was involved in four of the six verdicts people point to as “nuclear.” He said that adjuster is “not a good one,” and legislators are “rewarding incompetence” by citing out of control verdicts as a reason to cap damages.

The entire purpose of the American jury system is to hear the facts of a case and decide the outcome based on those facts, Lohse continued. “We as a legislative body don’t have that right, because we don’t know the facts of a case.” We don’t know whether $1 million is sufficient compensation, because “No two people have been impacted the same way,” even from the same injury. “But we’re going to cookie cutter approach this. We don’t care. Again, it’s not our right to set a limit on a person’s pain and suffering, and I find it incredibly arrogant of us to even think that we should.”

Jones also questioned the rationale for the bill. She cited statistics showing Iowa had the fifth-lowest medical malpractice insurance costs in the country, and was 22nd in physician density.

“Allegedly, this bill will cause doctors to flock to our state,” Jones said. Yet Nebraska has a shortage of health care professionals in rural areas, despite having capped medical malpractice damages.

Jones read from the nonpartisan fiscal analysis of the bill. Medical malpractice cases average about 160 per year in Iowa, a tiny percentage of the state’s roughly 666,000 annual court filings. Only a small percentage of malpractice cases (about thirteen per year) go to a jury trial.

“But those thirteen people, they deserve their day,” Jones said. “They deserve to be adequately compensated. But this bill caps their access to justice, because it’s about the system. A system in which victims should now bear the brunt of their injury and take one for the team.”

She concluded: “This bill demands that those babies, that those victims bear the brunt of economic realities. These are people. These are our families. These are our friends, our neighbors, and our loved ones. These are our babies, and we’re not protecting them.”

Echoing one of the leading talking points for school vouchers (“Iowa should fund students, not systems”), Jones wrapped up by telling her colleagues, “We should be supporting people, not systems.”

A WINDOW ONTO LAST-MINUTE DEALMAKING

A manager’s amendment, which Meyer and Schultz introduced on February 8, changed the bill in two ways. What had been a hard cap of $1 million for non-economic damages in all malpractice cases was raised to $2 million for cases involving hospitals.

Under questioning from Democratic State Senator Nate Boulton, Schultz said he wanted to stick with $1 million for all cases, but hospitals pushed for this compromise to get the bill through, because “it will save some of them. They are trying to survive.”

Boulton sought to clarify whether the legislature intended to allow Iowans to sue for more non-economic damages if they named a hospital as a defendant, as opposed to a surgical center or a nursing home.

Schultz said yes, adding that “Nursing homes will die” if they are subject to a $2 million cap. They’re already in trouble, he said; “that’s why we’re doing this.”

Boulton observed that “die” is a “really powerful word.” A lot of Iowans will have loved ones die due to the gross negligence of a nursing home, but they will not be able to recover what a jury of their peers might think is just and right as compensation for the error.

As will be discussed below, this provision could create grounds for an equal protection lawsuit.

NEW TASK FORCE EXCLUDES PATIENTS

Critics of the proposal had pointed out that as originally written, House File 161 did nothing to address the significant problem of medical errors. In his message to fellow legislators, Lofgren pointed out,

Over the years both chambers have passed protections for medical professionals that have stopped patients from getting to the truth. The defendants stack the deck, putting the plaintiff at a huge disadvantage with total disregard for patient safety. The defendant wins at trial 90% of the time.

Lofgren also linked to the latest Leapfrog Hospital Safety Grade, which last fall ranked Iowa 48th among the states for hospitals’ “ability to protect patients from preventable errors, accidents, injuries, and infections.”

To address those concerns, the floor managers’ amendment included language to establish a “Medical Error Task Force.” The body will include several state officials or their designees: the directors of the Iowa Department of Health and Human Services and the Department of Inspections and Appeals, the attorney general, and the state insurance commissioner. The state ombudsman will also be represented, as will the Iowa Medical Society, the Iowa Board of Medicine, and someone affiliated with the University of Iowa Hospitals and Clinics. Four legislators will be non-voting members.

The task force will submit recommendations to state lawmakers and the director of Health and Human Services by January 2024, to give the legislature a chance to act next session on any problems identified and options for reducing medical error rates.

But as Boulton emphasized, one group is missing from the equation. When he asked Schultz why patients who had suffered from medical negligence were not included on the task force, Schultz said, “I’m not sure what information they would offer.” He said the task force would go through documents looking for “hard information.”

Boulton said excluding those who had experienced medical errors “feels like an oversight.” The Iowans “who have lost most dearly aren’t represented on this task force at all.”

Speaking of Iowans who have lost the most, several legislators shared heartbreaking stories about people they knew whose lives were shattered by medical malpractice. Here’s Democratic State Senator Claire Celsi, reading a statement from a constituent, Kelly Denham.

Here’s Democratic State Senator Janet Petersen explaining why her best friend, who lost her mother at age 12, “doesn’t feel like she won the lottery.”

Petersen contended that if legislators want to stop hospital closures and save rural health care, they should increase Medicaid reimbursements, which haven’t been raised in Iowa for about a decade.

A CHALLENGE FOR “PRO-LIFE” LAWMAKERS

Some Republicans who opposed limiting damages for medical malpractice are also among the Iowa lawmakers most committed to banning abortion. Salmon has repeatedly co-sponsored “personhood” legislation defining life as beginning at conception. Stoltenberg has vowed to introduce a total abortion ban. In surveys returned to the anti-abortion organization Iowa Right to Life, Shipley and Andrews said they believed state abortion bans should not have any exceptions. Gustafson, Alons, Stoltenberg, and Salmon said the only exception they would support is “life of the mother.”

Before the malpractice bill came to the floor, Lofgren wrote to fellow lawmakers, “why would any pro-life legislator allow an insurance company to value a life?” He leaned on that argument again by introducing what he called the “life amendment,” which would lift the cap on non-economic damages in cases where a medical error due to negligence caused a death.

Lofgren noted that he’s always put “pro-life” first on his campaign literature, every time he’s run for office. Alluding to the fact that one of his grandchildren died following a medical error, he added, “My family definitely is strong life, I think when you lose a child, it really reinforces it.”

Schultz had tried to pre-empt that argument by emphasizing that proponents of capping malpractice damages were not “putting a price on life.” He urged colleagues to reject Lofgren’s “weakening amendment,” because “we are working on doing something important for our health care system.”

Lofgren’s closing remarks for amendment were concise. Since he began serving in the legislature in 2011, “I’ve heard beautiful speeches about [how] everybody loves life and everything, but you know, this is an opportunity that you can prove that.”

Although the amendment failed, it garnered support from all Senate Democrats and the same Republicans who joined Lofgren in voting against House File 161 on final passage.

Lohse also appealed to his “pro-life” colleagues when presenting the amendment he co-authored with Jones, which would have allowed families to sue for economic damages following the death of “a viable, unborn child.” That amendment failed by a wide margin, but thirteen Republicans and eleven Democrats supported it.

Later during the House debate, Democratic State Representative Brian Meyer questioned the floor manager Ann Meyer (no relation) about letting insurance companies put a price on life. The Republican rejected the framing: “I don’t think any of us have the right to put a value on life. We do have an obligation as a legislature to make sure our health care system is intact.”

When Brian Meyer asked how a $1 million cap on non-economic damages is not putting a value on a life, the floor manager replied, “Stability to the market.”

The Democrat shot back, “That’s awfully cold. Awfully cold. Stability of the market? When your child is dead? That is cold.”

ARE MEDICAL MALPRACTICE DAMAGE CAPS CONSTITUTIONAL?

Although some state limits on medical malpractice awards have survived judicial scrutiny, Supreme Courts in more than a half-dozen states, most recently Alaska, have struck down all or part of such laws.

Those rulings have relied on different constitutional arguments. In Alabama, Georgia, and Washington, the courts concluded that damage caps infringed on the right to trial by jury. In Illinois, the high court held that damage caps violated the separation of powers, because the legislature imposed decisions that should be reserved for judges and juries. Meanwhile, justices in Florida, Oklahoma, and New Hampshire held that caps on damages violated the equal protection clause.

Some time may pass before Iowa courts hear a challenge to the new law. The plaintiff would have to be someone who has suffered a concrete injury as a result of House File 161. For instance, a patient who was permanently disabled, or a surviving relative of someone killed by a medical error, might argue that the legislature unconstitutionally limited what a jury of fact-finders can award. That could violate the separation of powers doctrine, as well as Article I, Section 9 of the Iowa Constitution, which reads in part, “The right of trial by jury shall remain inviolate.”

During the House debate, Meyer argued that capping one source of damages does not limit anyone’s right to a jury trial. Some state Supreme Courts have upheld similar statutes on those grounds, so it’s hard to predict how the Iowa Supreme Court would view the question.

A plaintiff irreparably harmed while receiving care in a nursing home or surgical center might file an equal protection claim under Article 1, Section 6 of the state constitution. If two Iowans suffered the same kind of injury due to medical negligence, the one whose incident occurred in a hospital could recover up to $2 million in non-economic damages. But the one whose calamity occurred elsewhere would have compensation for pain and suffering capped at $1 million.

The Iowa Association for Justice, which represents trial attorneys, hinted at future litigation in its written statement following passage of House File 161.

There is no rational basis for this unconstitutional infringement on the right to trial by jury.

“Damage caps” or “tort reform,” force a one-size-fits-all, government-mandated dollar value on human life.

This bill will not attract more doctors to Iowa. This bill will not provide financial relief to providers. This bill will simply boost profits for insurance companies at the expense of those who are injured by medical negligence and nursing home neglect.

This is a dark day for the right to trial by jury in Iowa. Every legislator who voted for final passage of this bill has turned their backs on their constituents.

The phrase “rational basis” refers to the legal standard courts often use when determining whether a law or policy is constitutional. To survive that level of scrutiny, the statute “must have a legitimate state interest, and there must be a rational connection between the statute’s/ordinance’s means and goals.”

Iowans challenging the law may cite statistics showing that the damage caps have no real connection to the rural health care shortage or financial woes of Iowa nursing homes and hospitals, which mostly stem from population loss, workforce shortages, and/or low Medicaid reimbursement rates.

Along the same lines, declining and aging populations are the main reason many rural hospitals in Iowa have stopped delivering babies. Nebraska continues to have a shortage of health care providers in rural areas, despite having capped damages in medical malpractice cases many years ago.

The floor managers said the lack of damage caps make it difficult to recruit doctors to work in Iowa. But Democratic State Representative Heather Matson, who is married to a doctor practicing in Polk County, said her husband has received hundreds of recruitment letters.

After the points about signing bonuses and salaries, they list amenities like crystal-clear lakes and other outdoor recreation, exciting cultural opportunities and experiences, easy access to airports, and top-notch public schools. In essence, they talk about quality of life.

But you know what I have not seen on these cards in the last thirteen years? “Come practice here. Our state has caps on non-economic damages.” That’s not what they’re talking about.

“WILL YOU SERIOUSLY ALLOW YOURSELF TO BE BULLIED”?

It’s an open secret that Iowa House leaders and Governor Reynolds have put tremendous pressure on Republican members who weren’t on board with certain policies. But few lawmakers have spoken publicly about that dynamic.

Enter Cisneros.

He spoke passionately about the “terrible” bill, and how House Republicans had defeated it before.

He railed against trusting the government “to make an across-the-board, one-size-fits-all determination” about the value of life, substituting its judgment for a jury.

He waived off the stated reasons for limiting non-economic damages. “I suspect the proponents already know that this bill will not in fact bring more doctors to Iowa, or provide any direct financial relief to providers.” Cisneros noted that more than 20 states had capped malpractice awards on the same promise. “It’s never worked. We’ve all seen the facts.”

Then he pulled back the curtain.

I can tell you with certainty, there are several of you in this body who are prepared to vote for this bill despite knowing in your heart it is immoral and unjust.

Why? Because this bill was labeled a priority by leadership. Will you seriously allow yourself to be bullied into bending your moral compass away from the people of Iowa, and point it directly toward the billion-dollar corporations who want this handout?

Contrary to popular belief, you can say no to leadership. It’s actually quite easy, and sometimes very necessary. This is one of those occasions.

We swore an oath to the constitution, not the corporation. The founders had it right. We should be judged by a jury of our peers. The rights of the people must always come first.

Cisneros didn’t mention one important bit of context, but many of his colleagues are well aware of it. After working behind the scenes to block tort reform and other bills backed by powerful interests, he lost almost all his committee assignments.

Most Iowa House Republicans serve on three or four standing committees. Many have a leadership role on one panel, even in their first term. Leaders assigned Cisneros to four committees his first year in the legislature, and named him vice chair of Commerce. He lost the vice chair position prior to the 2022 session, but remained on four committees. This year, he’s on just one: Environmental Protection (not the most desirable assignment in GOP circles).

My review of Iowa House committee assignments indicates that no other lawmaker was assigned to only one panel. The Iowa legislative website also lists committees on each legislator’s page.

Another one of the tort reform holdouts, Andrews, served on four standing committees and a budget subcommittee during the 2022 legislative session, but was assigned to just two standing committees this year.

I’ll be watching to see whether House leaders punish anyone else who defied them on medical malpractice caps, or on school vouchers.

FINAL NOTE: PROSPECTS FOR OTHER “TORT REFORM”

Passage of the medical malpractice bill raises the question of whether legislative leaders can get a similar item from their wish list to the governor’s desk: a bill limiting liability of trucking companies and capping damages from lawsuits related to truck accidents. Some longtime major donors to Iowa GOP candidates have pushed hard for the policy. House leaders were unable to find 51 votes for the measure during the 2021 or 2022 legislative sessions, with one attempt resulting in an unusual failure for the majority in a floor vote.

The latest version of trucking tort reform (numbered House File 201 and Senate File 228) is eligible for debate in the House and Senate, having cleared committees in both chambers. I would guess it’s going to be very difficult to get this one through, even with larger GOP majorities. House Republicans managed only 52 votes for the malpractice caps; as mentioned above, Gustafson was an accidental yes vote, and one Democrat supported the bill. It’s a near-certainty that no Democrats will vote to grant immunity to trucking companies that are negligent in hiring, training, supervising, or trusting an employee.

While more than two dozen states have capped medical malpractice damages in some way, none have enacted special protection from lawsuits for trucking companies.

Finally, several Republican legislators who spoke in favor of House File 161 this month argued the bill was needed to save rural hospitals and health care access. Iowa isn’t suffering from any shortage of trucking companies or products delivered by trucks, so limiting damages for Iowans who have suffered horrific losses through truck crashes can’t be said to serve some greater purpose.

If any two House Republicans who backed the medical malpractice bill are unwilling to go that far for trucking companies, the bill won’t pass.

Top photo of State Representative Ann Meyer speaking during the February 8 Iowa House debate first published in Meyer’s weekly newsletter on legislative happenings.