Senate Medical Malpractice Bill Fails

Senate Democrats succeeded Wednesday in blocking a bill that would have limited jury awards to medical malpractice victims, but in the process they handed Republicans an issue ripe for next year’s election campaigns.

Republicans had taken their malpractice reform bill directly to the Senate floor, even though they knew it would fail to get the 60 votes necessary to cut off debate and force a vote on the bill itself.

But the 49-48 vote gave the Republican majority the next-best thing to victory: a recorded vote that Republican candidates could use against Democrats. All but two of the 48 votes against consideration of the bill were cast by Democrats.

“It could be a very potent political issue, particularly in those states where they have a crisis, “ said Sen. George Allen of Virginia, chairman of the Republican Senatorial Campaign Committee.

President Bush weighed in from Africa, saying he was “disappointed” in the vote. “The nation’s medical liability system is badly broken,” he said.

Malpractice reform has long been an issue in Congress, with doctors seeking protection against lawsuits and lawyers fighting for injured patients. Members of the American Medical Assn. and other physician groups are generous contributors to Republican candidates, while trial lawyers are among the Democrats’ top donors.

With some obstetricians and other specialists retiring early or moving because of escalating malpractice insurance rates in their states, the issue has gained urgency. For the first time, many Democrats conceded that Congress needed to act.

But the parties remained sharply divided on a solution.

Like a bill the House passed in March, the Senate Republican bill would have limited pain-and-suffering awards for medical malpractice to $250,000. The bills sought to protect not only doctors and hospitals but also HMOs, nursing homes, drug companies and medical-device makers from large jury awards.

Republicans said a $250,000 cap on noneconomic damages was needed to stabilize insurance rates for doctors and guarantee pregnant women and other patients access to timely health care.

“People are so sue-happy, and the system is set up to encourage frivolous lawsuits,” said Sen. John Ensign (R-Nev.), who sponsored the Republican bill.

Democrats, citing reports of 98,000 deaths a year caused by medical mistakes, insisted that both the problem and its solution were more complicated than that.

“There is a malpractice problem ... but we should address it in a way that does not penalize victims,” said Sen. Richard J. Durbin (D-Ill.), co-sponsor of an alternative bill that would have offered tax credits to help doctors with insurance costs.

Both Republicans and Democrats illustrated their arguments with numerous charts and large photographs of victims either horribly injured by bad medical care or badly injured or inconvenienced because there was no doctor available to treat them in time. As in the debate over the House bill, California’s 1975 malpractice reform law figured prominently.

California’s Medical Injury Compensation Reform Act limits noneconomic damages to $250,000, restricts lawyers’ fees, requires that juries be notified if a malpractice victim has health insurance or another source of compensation and requires that malpractice defendants be notified of a pending lawsuit long before it is filed.

While the California Medical Assn. preaches the gospel of the act to almost anyone who will listen, it opposes similar protections for HMOs and is concerned about the caps for drug companies and medical-device manufacturers included in both the House and Senate reform bills.

“We would like to have a bill to consider, though,” said Dr. Ron Bangasser, a family doctor in Riverside who is president of the association.

Earlier this year, Sen. Dianne Feinstein (D-Calif.) worked with CMA officials to try to forge a compromise bill that could attract Democratic as well as Republican support.

Feinstein opposed extending malpractice protections to HMOs and other groups. She also argued that California’s cap of $250,000, while appropriate in 1975, was far too low for patients injured in 2003 or later.

But the CMA could not support Feinstein’s proposed cap of $500,000, which it said would boost insurance rates for California physicians by 30%.

Opposition from doctors to a higher cap led Feinstein to drop her proposal. She said she voted against the Republican bill because its cap was too low.

California’s other senator, Democrat Barbara Boxer, also voted against consideration of the Republican bill.

Dr. Donald J. Palmisano, president of the AMA, said 19 states were in malpractice crisis and vowed that his group would “continue in a relentless fashion to work for medical liability reform.”