Senate Becomes O.K. Corral For a Surgeon and a Lawyer

Published on

The New York Times

WASHINGTON – Now that the Senate has blocked President Bush‘s plan to cap jury awards in medical malpractice cases, the battle will only intensify during next year’s elections. At its essence, the fight comes down to doctors versus lawyers.

In Washington politics, that means Bill Frist versus John Edwards.

Dr. Frist, a heart-lung transplant surgeon who relishes his role as the Senate’s only physician, has deftly used his new job as Republican leader to press Mr. Bush’s case that frivolous lawsuits are driving up malpractice premiums, putting doctors out of business and patients at risk. The quashing of the bill Wednesday by Democrats was expected, but now Republicans plan to take
their argument on the road, especially in states like Pennsylvania, Nevada, Florida and West Virginia, where the malpractice crisis is acute.

Senator Edwards, a Democratic presidential contender, is precisely the kind of man Mr. Bush and Dr. Frist rail against: a plaintiff’s lawyer who has made millions representing victims of malpractice. Following Wednesday’s Senate vote, Republicans in his home state, North Carolina, are already attacking him as a “lackey for trial lawyers” — a message Bill McInturff, a Republican pollster, calls “the political subtext” of the malpractice debate.

Republicans, who have been pressing for tort law changes since long before Dr. Frist and Mr. Edwards joined the Senate, are now using the malpractice debate to stake a claim to voters’ concerns about rising health care costs. But with the debate intensifying, these two men stand as convenient symbols, almost as if the conflict has come to life inside the Capitol in the person of the senators from North Carolina and Tennessee.

“It’s like that movie ‘Face/Off,’ ” said Jamie Court, executive director of the Foundation for Taxpayer and Consumer Rights, an advocacy group that opposes changes in malpractice law. “They’re alter egos, and each is pursuing a course that sets him up as the antithesis of the other. It is literally giving voters a very clear choice between the two sides of the spectrum.”

Some say the face-off is really between Mr. Edwards — as a surrogate for the Democratic presidential field — and President Bush, with Dr. Frist, himself a potential presidential candidate in 2008, serving as a stand-in for the president. When Mr. Bush first announced his initiative to change malpractice law, he did so in High Point, N.C., squarely on Mr. Edwards’s home turf. The
senator’s aides still derisively refer to the president’s event as “Whack John Edwards Day.”

Some Democrats, though, insist this strategy will backfire. “Every time Bush attacks trial lawyers,” said Mark Mellman, a Democratic consultant, “John Edwards rings his cash register for a couple hundred thousand more dollars.”

On the surface, at least, Dr. Frist and Mr. Edwards would seem to have much in common. Both are baby boomers; Dr. Frist is 51, Mr. Edwards, 50. Both are southerners. Both have children who attend Princeton University. Both are runners, and turned up in the same race — the Marine Corps Marathon — a few years ago. (No word from their aides on which senator had the better time.)

Both were elected to the Senate having never before held public office, and are regarded as fresh faces in their respective parties — and political opponents, perhaps, at some later day. Neither shies away from carrying the political agenda of his profession.

Dr. Frist, who can seem almost robotic when handling the mundane parliamentary business of the Senate, lights up when he talks about medicine. He keeps a doctor’s black bag in his Senate office, and uses his medical skills whenever he can, both in real life and the political theater. In January, while on a family vacation in Florida, the senator came to the aid of five people who
were critically injured in a car crash.

A few months later, Dr. Frist recounted the story in a speech to the American Medical Association, which has made malpractice law change its No. 1 legislative priority. “What was remarkable to me,” Dr. Frist said then, “were the e-mails I got afterward from the medical community, saying ‘Are you crazy? Why would you stop if you know you are going to be sued?’ “

Though there have been 46 doctor-senators in the Republic’s history, Dr. Frist is the Senate’s first practicing physician since 1938 — a fact that has not escaped the notice of the A.M.A., which counts him as a member. “He sees the consequences of the broken medical liability system,” said Dr. Donald J. Palmisano, the association’s president. “He has that additional perspective because he’s been in the trenches.”

The number of lawyers who have served in the Senate are, by contrast, far too numerous to count. But Senator Edwards is clearly the Senate’s best-known trial lawyer, a distinction he seems to embrace. Where Dr. Frist often begins sentences with the words, “As a physician. . .,” Mr. Edwards portrays himself as a fighter for the underdog.

“I see myself as somebody who stood up for kids and families,” he said in an interview the other day.

That theme has worked as well for the North Carolina senator as being a physician has for Dr. Frist, said Donna Brazile, a Democratic strategist. “Trial lawyers fight for ordinary people,” she said, “and that’s part of Edwards’ message.”

On the Senate floor this week, Dr. Frist and Mr. Edwards did not face each other. “I’m running for president,” Mr. Edwards said, explaining that he was too busy campaigning to participate in the Senate debate.

But he did return to the Capitol on Wednesday to vote, and even from afar his presence was felt. The Democratic alternative to the Republican measure, which would offer tax relief to doctors, strip the insurance industry of its longstanding exemption to federal antitrust law and create a commission to study the cause of high malpractice premiums, draws on some ideas Mr. Edwards laid out in May in an opinion article published in The Washington Post. “These are ideas that I’ve been working on for a long time,” he said.

At a time when voters are concerned about the rising cost of health care, both parties are trying to make the issue their own, and both are laying blame. “Part of the question,” said Mr. Mellman, the Democratic consultant, “is who is the bigger villain?” While Republicans blame trial lawyers, Democrats like Mr. Edwards blame insurance companies, drawing on public mistrust of health
maintenance organizations. But Mr. McInturff, the Republican pollster, says the malpractice issue is allowing Republicans to claim a piece of the health care debate as their own.

“If the public is concerned about the rising cost of health care,” he said, “this is a Republican way to talk about what we would do to get at the root cause.”

As the symbols of this debate, both Dr. Frist and Mr. Edwards have been vilified. The American Tort Law Association, a nonprofit group that advocates tort law changes, is creating a new Web site, http://www.ed, to track trial lawyers’ campaign contributions, including to Mr. Edwards.

Dr. Frist, meanwhile, has been accused of having a conflict of interest because his father is the founder of HCA, a giant hospital corporation. The company pays out millions each year in malpractice claims, and owns a subsidiary that writes malpractice insurance policies. Asked about his critics’ contentions that he should recuse himself, Dr. Frist paused for a moment before responding in careful, measured tones.

“As a physician,” he said, “I will participate actively in the debate in response to the national crisis.”

Consumer Watchdog
Consumer Watchdog
Providing an effective voice for American consumers in an era when special interests dominate public discourse, government and politics. Non-partisan.

Latest Videos

Latest Releases

In The News

Latest Report

Support Consumer Watchdog

Subscribe to our newsletter

To be updated with all the latest news, press releases and special reports.

More Releases