February 20, 2004
Senate Majority Leader Bill Frist
United States Senate
Washington, D.C. 20510
Re: Medical Malpractice Proposal’s Benefits to Your Family’s Hospitals Mandate Your Recusal
Dear Senator Frist:
Last year, we called on you to recuse yourself from votes and advocacy in the medical liability debate due to the conflict of interest created by your close personal and financial ties to the nation’s largest hospital chain, HCA, and its subsidiary Health Care Indemnity (HCI), the country’s sixth-largest medical malpractice insurer.
Senate financial disclosures reveal that you and your immediate family own at least $25 million in HCA stock and your inheritance is clearly dependent on the success of the financial fortunes of the company. HCA and its doctors will benefit from any limits on liability for malpractice, however, the pork for the company in the legislation you are hurrying to the floor Tuesday is beyond the pale. This conflict of interest is even more obvious than last year’s, which is why you must immediately cease your advocacy on behalf of HCA and HCI.
You should immediately recuse yourself from pending votes on liability caps, end your personal advocacy for S. 2061, and abstain from any future involvement in the medical malpractice debate. Should you ignore this responsibility, we will ask the Senate Ethics Committee to investigate your conflict.
S. 2061 — which specifically shields hospitals in cases of babies harmed at birth — disproportionately disadvantages families injured by HCA’s negligence in the following ways, and in some circumstances would prevent injured patients and their families from bringing legitimate cases, limiting losses and thereby increasing profits for HCI:
– Applying a $250,000 non-economic damage cap in cases involving only pregnancy, delivery and other obstetrical and gynecological care is a giveaway to hospitals that are typically defendants in these cases. Non-economic damages are often the only compensation available to families that lose a child due to medical negligence and a damage cap would restrict their ability to bring suit against a hospital at all.
– Eliminating joint and several liability is a boon for HCA and HCI. Joint and several liability, as it applies in most states, holds the hospital accountable if a doctor is unable to pay a damage award and the hospital was involved in the medical negligence. Dropping this rule will benefit hospitals and insurers by eliminating their liability if one of their doctors goes bankrupt and is unable to pay a victim’s damages.
– The proposal would allow periodic payments of damage awards by HCA and HCI, letting them keep money which is owed to a victim and pay it out over time. If a victim dies, they stop making payment and keep the money. Further, as hospitals and insurers keep the money they owe, they can continue to invest and accrue interest on it, while the victim is denied the full value of his award.
– Effectively ending the ability of nurses or technicians to testify about others in their field makes it hard to bring a case against a negligent practitioner, and is of particular benefit to hospitals which often indemnify these staff members or self-insure. Further, the standards set by the bill will make it more difficult for injured patients to find expert witnesses, in many cases resulting in the inability to bring suit at all.
– The bill imposes a collateral source offset, forcing health insurers and government programs to bear the bulk of the cost of medical mistakes by requiring them to pay for a victim’s care before the culpable or negligent hospital. This transfers the burden of hospitals’ negligence to taxpayers and everyone who pays for health insurance.
S. 2061 would be an even greater financial coup for HCA and HCI than last year’s proposal.
You have failed to explain why your actions, which would increase your family fortune, your own investments and perhaps your inheritance, are not a conflict of interest. Never has the need for you to step aside been more clear.