House says ‘yes’ by narrow margin, Senate stalling as Congress eyes tort reform

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State delegation split over medical liability reform legislation’s worth

The Clarion-Ledger (Jackson, MS)

Same song, second verse . . .

The Legislature reconvenes tomorrow and the House and Senate can’t agree on tort reform. For Mississippians, that news has become as stale as last week’s bread as legislative conferees continued to struggle last week to reach consensus on the contentious issue.

It’s an intense, high-stakes state political fight between powerful special interests – trial lawyers, drug manufacturers, doctors, hospitals and nursing homes and the insurance industry – each with apparent strangleholds on the leadership of both houses of the Legislature.

Yet, essentially the same political scenario is being played out in the U.S. Capitol as well, as Congress confronts the same issue. And in Washington – as in Jackson – the political water is wide between the House and Senate on the question of medical malpractice liability or tort reforms.

On Sept. 26, following last-ditch attempts by ranking Democrats on the U.S. House Judiciary Committee to recommit or table the measure, the House voted by a narrow 217 to 203 margin to pass HR 4600, known as the Help Efficient, Accessible, Low Cost, Timely Health Care Act of 2002 or simply the HEALTH Act. The official title of the bill stated the purpose as: “To improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care system.”

The vote was split decidedly along party lines. Of the 217 votes supporting the measure, only 14 came from Democrats. Of the 203 votes opposing the measure, only 15 came from Republicans.

The Mississippi delegation saw 1st District U.S. Rep. Roger Wicker of Tupelo and current 3rd District U.S. Rep. Chip Pickeringof Hebron – both Republicans – vote in favor of the measure along with Democratic 5th District U.S. Rep. Gene Taylor of Bay St. Louis.

Pickering, Taylor and Wicker were all co-sponsors of the legislation along with principal House author Rep. James C. Greenwood, R-Pa.

Second District U.S. Rep. Bennie Thompson of Bolton and current 4th District U.S. Rep. Ronnie Shows of Bassfield voted against the bill. Both Thompson and Shows voted unsuccessfully to recommit the bill prior to its passage.

Senate Bill 2793 – also styled as “the HEALTH Act” – was introduced in on July 25 by U.S. Sen. John R. Ensign, R-Nevada. On July 31, the Senate failed to approve an amendment introduced by Sen. Mitch McConnell, R-Ky., that would have incorporated many of the provisions found in SB 2793.

A substantial difference between the McConnell amendment and SB 2793 was that the amendment did not include a cap on non-economic damages. The amendment failed by a vote of 57-42. Both Republican Mississippi senators – Sen. Thad Cochran of Jackson and Sen. Trent Lott of Pascagoula – voted in favor of the amendment.

The House version of the HEALTH Act was referred to the Senate Judiciary Committee, where action is pending. But most national observers doubt that the Democratic-controlled Senate will take action on the bill.

As in Mississippi’s tort reform quagmire, the battle lines in Congress are drawn along partisan, philosophical and ideological lines.

The American Medical Association supports HR 4600 in much the same manner that the Mississippi State Medical Association has backed tort reform in Mississippi.

“The House of Representatives said ‘no’ to the liability lottery and ‘yes’ to common sense liability reforms,” said AMA President-elect Donald J. Palmisano, Md.

“Today, the House acknowledged the fact that every American pays the price for this country’s liability crisis,” he said.

The HEALTH Act is based on a 1975 California law known as the Medical Injury Compensation Reform Act (MICRA), which proponents claim has proven fair to patients and effective at stabilizing the medical liability system in California. The AMA said last week that MICRA had saved Californians more than $1 billion a year in liability premiums.

But national trial lawyer organizations and the Foundation for Taxpayer and Consumer Rights (FTCR) – a non-profit consumer advocacy group founded by attorneys – have attacked the reforms.

FTCR Executive Director Jamie Court testified on HR4600 before Congress in recent months and said: “HR 4600 will deny innocent victims of medical negligence both adequate compensation for their injuries and legal representation for legitimate claims.”

The HEALTH Act contains the following medical liability reforms:

– Imposes a statute of limitations by mandating that plaintiffs bring claims within three years of the injury, one year after the injury is discovered or one year from when the injury would have been discovered. Proponents say the measure would expedite the resolution of claims. Opponents claim the statute of limitations unfairly limits the rights of malpractice victims.

– Places a $250,000 cap on non-economic damages or so-called “pain and suffering.” Opponents say the non-economic damage cap isn’t adjusted for inflation, applies no matter how many parties are being sued and fails to take into account the severity of injury.

– Eliminates joint and several liability – making defendants liable only for the percentage of injury for which they are responsible. Opponents say that without joint and several liability, victims will not be fully compensated for their losses.

– Establishes limits on contingent attorneys’ fees regardless of whether a case is decided by judgment, settlement or any other form of resolution. The bill specifies that contingent fees for plaintiffs’ attorneys may not exceed certain limits established in the bill. Opponents claim the reform is unfair because it places no restrictions on fees for defense attorneys and that is restricts incentive for plaintiffs’ attorneys to prosecute difficult, marginal cases on behalf of victims.

– Allows juries to be informed of prior or “collateral source” insurance payments made or available to medical malpractice plaintiffs. Opponents say the reform allows defendants to profit from the decision of victims to carry insurance and that if “collateral source” benefits of the plaintiffs are to be disclosed, then the amount of the defendant’s liability insurance should

likewise be disclosed.

– Allow periodic or installment payments of future damages equal to or more than $50,000. Opponents say the reform leaves malpractice victims economically vulnerable and uncompensated while insurance companies profit from the ability to make installment payments.

– States retain existing damage caps whether larger or smaller than the federal caps. Opponents say the bill preempts state laws and particularly point to the fact that the law would impose the federal caps even in states where prior state lawsuit caps had been judged unconstitutional by state supreme courts.

The reaction of Mississippi’s congressional delegation to HR 4600 is steeped in the heat of ongoing re-election campaigns. Tort reform issues, along with campaign finance reports reflecting contributions from both trial lawyers and large corporations have already been made part of the attack and counter-attack of campaign speeches, debates and television advertising.

“Mississippi and the rest of the nation are in desperate need of this legislation to stop frivolous lawsuits,” said Pickering. “Our state is in crisis and it appears that efforts in the Mississippi Legislature are in jeopardy, which makes this federal legislation even more important. This legislation preserve people’s rights to have their day in court before a jury, but puts the brakes on out-of-control lawsuits.”

Shows, Pickering’s opponent in the race for the new combined 3rd District, would not comment on his vote against the federal medical malpractice reform bill in September. But in response to questions about the HR 4600 vote, Shows’ staff released a copy of a July press release announcing his introduction of HR 5253, the Medical Liability Insurance Crisis Response Act of 2002.

“This legislation provides many comprehensive reforms to our current medical malpractice liability system of law,” Shows said in July.

Speaking on behalf of Thompson, the congressman’s legislative director Lanier Avant said: “Congressman Thompson has long been on record as opposed to changes of this nature that limit a citizen’s right to a trial by jury. HR 4600 preempts state law. The federal government should not come between plaintiffs and Mississippi juries.”

Taylor said: “I’m confident that H.R. 4600 will not interfere with the right of anyone injured by negligence or malpractice to seek appropriate compensation. I also hope that Congress takes a closer look at the insurance industry’s exemption from our nation’s anti-trust laws. If the goal is to make insurance more affordable for our citizens, then promoting competition in the insurance industry should be a congressional priority.”

Wicker said: “The bill approved by the House provides important reforms to protect victims’ right and ensure continued access to health care to everyone.”

But Senate action on the House bill remains a political long shot.


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