Here We Go Again

Challenge Over Federal Tort Reform Once Again Lies in Senate

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Legislative Affairs Feature -- May 2003  

By  Ken Ortolon
Senior Editor

Life changed forever for Leanne Dyess of Vicksburg, Miss., on July 5, 2002. That was the day her husband, Tony, apparently fell asleep at the wheel of his car while returning from work in Gulfport and sustained serious head injuries in the resulting accident.

He was taken to a nearby hospital, but there was no neurosurgeon available to insert a shunt into his brain to relieve the swelling. By the time he was airlifted to another hospital, he had suffered irreversible brain damage.

"We had just started a new business. Tony was working hard. We were doing our best to build a life for our children. Everything looked bright. Then, in an instant, it changed," Ms. Dyess told a U.S. House subcommittee hearing on federal liability reform legislation in February.

"Today, Tony is permanently brain damaged. He is mentally incompetent, unable to care for himself, unable to provide for his children, unable to live the vibrant, active, and loving life he was living only moments before his accident."

Dealing with her husband's condition was bad enough, but learning the root cause was even worse.

"I learned that there was no specialist on staff that night in Gulfport because rising medical liability costs had forced physicians in that community to abandon their practices. In that area, at that time, there was only one doctor who had the expertise to care for Tony, and he was forced to cover multiple hospitals -- stretched thin and unable to care for everyone. Another doctor had recently quit his practice. And on that hot night in July, my husband drew the short straw."

Her story is one of many cited by American Medical Association President-Elect Donald Palmisano, MD, in the effort to win congressional approval of the HEALTH (Help Efficient, Accessible, Low-Cost, Timely Healthcare) Act. "We don't want any more stories like that," he said.

But the story of the HEALTH Act's journey through Congress is quite familiar to physicians.

In 2002, the U.S. House passed sweeping medical liability reforms to cap noneconomic damages and rein in lawyer contingency fees. The bill died in the Democratically controlled U.S. Senate without ever getting a vote.

In March, the House voted 229-196 to approve the HEALTH Act, also known as House Resolution 5, by U.S. Rep. James Greenwood (R-Pa.). The vote was largely along party lines with only a handful of Democrats, such as U.S. Reps. Charles Stenholm of Abilene and Ralph Hall of Rockwall, joining Republicans to pass the bill.

That put the tort reform spotlight once again squarely on the Senate. While supporters of the bill say gaining Senate approval will be problematic again this year, a new set of circumstances, including a change in Senate leadership, provides some hope a medical liability reform measure can pass. And, they say it is critical that something be done to fix the broken liability system soon if access to quality medical care is to be maintained.

"I realize there are still big barriers to overcome," said Houston emergency physician Arlo Weltge, MD. "But there's a desperation that without some meaningful legislation we really may not have access to care."

Getting HEALTHy  

HR 5, says Texas Medical Association Council on Legislation Chair Joe H. Cunningham, MD, is based largely on the Medical Insurance Compensation Reform Act adopted in California in the 1970s. MICRA also is the cornerstone of state medical liability reforms backed by TMA and now being debated in the Texas Legislature.

Dr. Cunningham says passage of federal liability reforms would reinforce any state laws enacted this year and would also remove a significant obstacle to a cap on noneconomic damages in Texas. State courts have thrown out damage caps in the past as unconstitutional. A federal law would preempt state provisions.

"That question would be removed," Dr. Cunningham said. "If there is a federal cap, we don't have to worry about a state cap law being declared unconstitutional."

HR 5 caps unquantifiable noneconomic damages, such as pain and suffering, at $250,000. It limits punitive damages to two times the amount of economic damages, or $250,000, whichever is greater. It also raises the burden of proof for punitive damages, allows periodic payment for future medical expenses, limits attorney contingency fees, sets the statute of limitations for filing malpractice claims at three years (except for minors under age 6), and limits a defendant's liability to only the percentage of his or her own fault.

Both TMA and AMA staunchly support HR 5, along with more than 125 other state and national medical associations, patient advocacy groups, and other organizations.

Dr. Palmisano says it is critical to put the brakes on rising medical liability premiums before physicians are driven out of practice and patients' access to care is compromised throughout the nation. "It doesn't matter if you have health insurance, it doesn't matter if you have a drug benefit if you can't find a doctor."

Dr. Palmisano says only a handful of states now have stable medical liability climates and as many as 18 states are in full-blown crisis.

Dr. Weltge says emergency physicians are in the thick of it.

"Premiums are going out of sight, and emergency physicians can't find coverage," said Dr. Weltge, a consultant to the TMA Council on Legislation. "I know several large groups that have come within less than 24 hours of completely losing coverage for the entire group."

During House floor debate on HR 5, Representative Stenholm, one of seven Texas House members who cosponsored the bill, said he had "no interest in removing appropriate avenues of redress" for injured patients. But, he added, "No one can claim that the system we have now is good for the doctors or the patients when doctors must pursue expensive, defensive medicine rather than doing what they think is right. No one can think it's good for patients to have doctors leaving the profession in droves because of the financial and psychological strains of caring for people under current malpractice realities."

"Our liability system is on the brink of collapse because of runaway costs," added freshman Rep. Michael Burgess, MD, (R-Lewisville), another cosponsor. "When you look at the number of states that are in crisis or near crisis, you realize this is a national issue."

Changing Fortunes  

The HEALTH Act was introduced in the Senate as S 607 by Sen. John Ensign (R-Nev.), and preliminary hearings were held in March in the Senate Judiciary, Appropriations, and Health committees. However, Dr. Weltge says the war in Iraq and debate on the federal budget likely will push the bill to the back burner until late spring.

Meanwhile, Dr. Palmisano says supporters of the bill are working diligently to muster grassroots support from both physicians and the public.

"The challenge is for the American public to speak out on this issue," Dr. Palmisano said. "We know the polls show the overwhelming majority of Americans -- 72 percent -- support caps on noneconomic damages and limits on contingency fees. They're concerned about access to care."

But Drs. Palmisano and Weltge recognize that getting any medical liability reform out of the Senate will be difficult, even though Republicans now control that body with a 51 to 48 margin, with one independent.

"I think there are some pieces in play that make the chances of getting this bill through the Senate better," Dr. Weltge said. First, President Bush has spoken out strongly in favor of liability reform in his State of the Union address and in speeches across the country. Second, new Senate Majority Leader Bill Frist, MD, (R-Tenn.) has made liability reform a priority issue.

But Democrats, led by Senate Minority Leader Tom Daschle, are squarely against the measure and have threatened a filibuster to block any vote on the Senate floor. The narrow Republican majority means Democrats likely could prevail in a "cloture" vote to cut off debate and force an up or down vote on the bill.

Don Stewart, communications director for U.S. Sen. John Cornyn (R-Texas), says cloture allows the majority to limit debate and cut off all proposed amendments that are not germane to a bill. But 60 votes are required to invoke cloture. At press time, Senate Republicans had been able to muster only 55 votes to force a floor vote on federal appeals court nominee Miguel Estrada.

"It takes 60 votes, and if you don't get it, then they can just talk the thing to death," said Mr. Stewart, whose boss supports the HEALTH Act and likely will sign on as a cosponsor. "It is possible that could happen."

Specialty society lobbyists and Republican Senate staffers say Sen. Zell Miller, a conservative Georgia Democrat, might be swayed to the Republican side. And, Sen. Dianne Feinstein (D-Calif.) proposed a compromise that would double the damage cap to $500,000 and allow damages to go as high as $2 million in some catastrophic cases.

The proposal drew praise from Senator Frist as possibly the only chance to get legislation out of the Senate this year. However, Senator Feinstein pulled down the proposal after California physicians and AMA refused to support it. "There is no way that I am going to introduce legislation that is going to be fought by my own doctors, whom I am trying to help," she said in an interview with the New York Times in late March.

Meanwhile, a handful of Republicans who are on the fence  would have to be won over, as well. Those include states' rights advocates such as Sens. George Allen of Virginia and Richard Shelby of Alabama and former trial lawyer Sen. Lindsay Graham of South Carolina. Even Senate Judiciary Committee Chair Orrin Hatch (R-Utah) has expressed some concerns about the legislation, they say.

Sacrificing the Perfect  

The key to Senate passage is going to be crafting a bill that Democrats won't filibuster, or for which Republicans can drain off enough Democratic votes to cut off debate. That, Dr. Weltge says, may mean accepting a compromise that's less than perfect.

"From the Republicans' point of view, they're looking for anything to pass the Senate," he said. "They've never been able to get a bill out of the Senate. If they can do that, then the real work can be done in conference committee."

Representative Burgess says Senator Frist believes he can get a bill through the Senate. "He added a caveat that we might not like what it looked like when it came out the other end of the Senate but a bill would get through," he said. "The good news there is we get to go to conference committee and perhaps work out the differences between the House and Senate versions."

Once in conference committee, the rules change and there is less opportunity for the opposition to hold up final passage, even if proponents craft a conference committee report that looks much like the current HR 5.

Representative Stenholm's press aide, Becca Tice, says he and other House supporters of the bill recognize that some compromise likely will be needed if the bill is to have any hope in the Senate.

"Congressman Stenholm's perspective is if we need to make some changes to the bill, let's do that rather than let the issue just die again," Ms. Tice said. "Let's get something instead of nothing. Don't let the perfect be the enemy of the good here."

 Dr. Palmisano says AMA also is willing to look at alternatives. "The association is always willing to have discussions with anyone who wants to truly move a bill forward that will accomplish the desired goal, which is to keep doctors in practice and lower insurance premiums."

Ken Ortolon can be reached at (800) 880-1300, ext. 1392, or (512) 370-1392; or by email at Ken Ortolon.  

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