Short of Votes, Senate G.O.P. Still Pushes Malpractice Issue

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The New York Times

WASHINGTON — A bill that would impose strict limits on jury awards in medical malpractice cases — a central element of President Bush‘s plan to revamp tort law — appears headed for defeat in the Senate. But the majority leader, Bill Frist, intends to introduce the measure on Monday anyway, forcing a vote that could be used against Democrats in the next election.

The bill, similar to one the House passed in March, would limit awards for pain and suffering to $250,000.

The bill has no Democratic sponsors, and Republican leaders, including Dr. Frist and Senator Mitch McConnell, the Republican whip who will manage the bill on the floor, concede they do not have the 60 votes needed to overcome a filibuster.

“It’s going to be difficult,” Mr. McConnell said.

A vote could occur as early as Wednesday. But proponents say that even if they lose, as expected, the issue is not dead for this Congress.

Instead, Dr. Frist, who has made malpractice changes a signature issue, hopes the vote will force lawmakers to take a stand. That would expose them to more pressure from lobbyists, and might yield a compromise later in the year.

On Thursday, a group that opposes Dr. Frist’s position called on him to remove himself from the debate because he and his family own substantial investments that would benefit from limits on medical liability. The group, the Foundation for Taxpayer and Consumer rights, said the family’s holdings in HCA, the nation’s largest for-profit hospital chain, and a subsidiary, Health Care
Indemnity, the fifth-largest medical malpractice insurer, created a conflict of interest.

The broad issue of overhauling the laws governing liability in lawsuits has been a perennial dividing line between Democrats and Republicans, and because of the rising costs of medical liability insurance, this aspect of the issue has been especially potent this year.

With medical liability premiums rising and some doctors leaving their practices as a result, proponents of malpractice changes say caps on jury awards are necessary.

Doctors, insurers and business groups, all of whom contribute substantially to Republicans, are lobbying heavily for the bill.

But opponents, mainly trial lawyers and consumer groups and the Democrats they support, say the bill, modeled after a California law, would deprive malpractice victims of their day in court without solving the insurance problem.

They say the $250,000 cap is too restrictive.

“We have tried during the first six months of the year to see if we can’t build a bipartisan consensus on this, and thus far have been unsuccessful,” said a spokesman for Senator Frist, Bob Stevenson. He added, “We view this as a long march, and this is the beginning of it.”

That march may well extend until the next election, in 2004. Some Democrats — who complained that Dr. Frist is circumventing Senate procedure by bringing the measure up for a vote before it has been considered in committee — said he is using the vote to generate a political issue for Republicans.

Republicans made it clear that they intended to use the vote against Democrats.

“Women are having trouble finding obstetricians to be able to deliver their babies,” said Senator John Ensign, Republican of Nevada, the chief sponsor of the measure.

“In states like Nevada, doctors are leaving in droves, and that kind of scenario is repeating itself over and over around the country,” Mr. Ensign said. “As voters become aware of it, I think you’re going to see the change of minds of senators who may now be against it. We bring it up for a vote now, and it may cost them in the next election.”

Mr. McConnell agreed. “It’s important for everybody to go on record,” he said. “If we don’t act, I think it’s a certainty that it will be an issue in next year’s election.”

Because most controversial legislation needs 60 votes to pass the Senate, Democrats will have at least two opportunities to defeat the measure on the Senate floor.

Under Senate procedure, they may vote to block Dr. Frist from even bringing the bill up for debate. Or they could allow debate to proceed and then signal their intention to filibuster, forcing Republicans to come up with 60 votes to halt debate.

A spokesman for Senator Tom Daschle of South Dakota, the Democratic leader, said Mr. Daschle had not decided how to proceed.

Senator Richard J. Durbin, Democrat of Illinois, said he hoped there would be a full debate, because he was developing an alternative that would offer doctors tax credits to give them some relief from insurance premiums.

Mr. Durbin said his bill would also curb the insurance industry’s exemption from antitrust laws — a move that a number of Democrats, including Senator Patrick J. Leahy of Vermont, argued would exert downward pressure on rates.

“The premiums that are being charged to doctors are outrageous and I think we need to do something,” Mr. Durbin said.

With a Republican in the White House and Republicans controlling both houses of Congress, proponents of malpractice-law changes have been hopeful that this year they would finally achieve their goal.

Some now sound gloomy.

“This represents our best offer,” said Kate Sullivan, director of health care policy at the United States Chamber of Commerce, adding, “My fear is if we take a vote right now and we lose the vote, then this is bad for the 108th Congress, which runs through 2004.”

But officials of the American Medical Association, which made medical liability legislation its main priority in Washington, remain — in public at least — upbeat.

“We believe it’s the best opportunity for national medical liability reform that were seeing, certainly in my lifetime, and we still remain optimistic,” said Dr. Donald J. Palmisano, the association’s president.

Both sides are lobbying hard. The medical association is starting an advertising campaign focused on senators opposed to the bill, and USAction, a consumer advocacy group backed by the trial lawyers, is spending more than $500,000 on a two-week advertising campaign featuring victims of medical malpractice.

“This Congress has a very bad track record of supporting powerful special interests at the expense of average Americans,” said Jeff Blum, USAction’s executive director. “We want to make sure that real stories of real people are in the debate on medical malpractice.”

Those stories have had a powerful effect on the debate.

In February, just as the House was planning to take up its bill, a 17-year-old transplant patient, Jesica Santillan, died after doctors in North Carolina gave her a heart and lung of the wrong blood type. Opponents of the bill cited the death in arguing that a $250,000 cap for pain and suffering was too low. Critics, including some Senate Republicans, began to argue that any malpractice legislation would need an exemption for catastrophic cases.

For a time, it seemed that Republicans and Democrats might be able to broker a deal. But the lead Democrat in the negotiations, Senator Dianne Feinstein of California, dropped out when doctors’ groups, including the medical association, refused to support a proposal that would limit jury awards for pain and suffering at $500,000. Dr. Palmisano, the association’s president, said the group has been turning to the states.

Despite the lack of agreement and the bill’s dim prospects, Senator McConnell said there was no reason to wait.

“There is substantial clamoring for a national solution to this national problem,” he said, “and we think there is no time like the present to begin to deal with it.”

Consumer Watchdog
Consumer Watchdog
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