Showdown Near on Patients’ Bill

After a series of compromises, the Senate now appears headed for a showdown on the most disputed provisions of a far-reaching patients’ rights bill, with Democrats increasingly reluctant to give ground and some Republicans threatening to drag the fight into the weeklong Fourth of July recess.

The looming battles center on the key questions of whether patients should be able to sue health insurers in state courts and how much they should be allowed to collect in damages. The impasse raises the odds that President Bush will be tested on his threat to veto the legislation.

Both sides dug in Wednesday, as Democrats continued to beat back amendments offered by foes of the legislation, and--emboldened by their success--signaled that their interest in further compromise is limited.

Senate Majority Leader Tom Daschle (D-S.D.) said Democrats have all but nailed down agreements on several issues, including how much freedom states should have to craft their own patients’ laws and language protecting employers from employee lawsuits over health care coverage.

But Daschle indicated that Democrats will stand firm against GOP efforts to confine all health maintenance organization suits to federal court and impose strict caps on punitive and pain-and-suffering damages.

“I obviously will look at suggestions,” Daschle said, “but my inclination is to stay where we are.”

Frustrated Republicans, who have seen a bloc of their party’s moderates side with Democrats on a series of amendments, argued in a strategy meeting Wednesday about whether to try to delay passage and test Daschle’s resolve to work through the upcoming holiday.

Sen. Rick Santorum (R-Pa.), a GOP Senate leader, called the Democrats’ bill a “disaster” and said, “Many of us want to stay here until we can get it fixed.”

But others, noting that Republicans have lost every critical vote on the patients’ bill so far, were less inclined to prolong the battle. “We’re not winning anything,” said Sen. Phil Gramm (R-Texas). “I don’t know that doing 100 more [votes] would make any difference. We might as well let it get to the president and let him veto it.”

Bush reiterated his veto threat during a meeting at the White House on Wednesday. The Senate bill, he said “will run up the cost of health insurance for American workers and could conceivably cost millions of people their health insurance. I can’t accept that kind of legislation.”

Bush made his remarks at an event with House Republicans, who have drafted a rival patients’ rights measure that the president said he would sign. But even in the House, a Democratic patients’ bill similar to the Senate legislation appears to have the upper hand.

The Senate bill would create an array of new protections for patients, including guaranteed access to emergency room care and certain specialists. It also would expand patients’ rights to sue HMOs over coverage details.

Democrats and Republicans are in agreement on most provisions of the patients’ bill, which has been debated in Congress on and off for the last five years.

The most significant disagreements include the question of damages patients can win in court when they are injured by an HMO’s denial or delay of treatment.

The Democrats’ bill, sponsored by Sens. Edward M. Kennedy (D-Mass.), John McCain (R-Ariz.) and John Edwards (D-N.C.), would allow unlimited pain-and-suffering damages and cap punitive awards at $5 million.

Republicans, including Bush, argue that such a law would trigger an avalanche of litigation and would amount to a boon for trial lawyers. Republicans are seeking to prohibit punitive damages and cap pain-and-suffering damages at about $750,000.

Edwards acknowledged Wednesday there has been little progress toward resolving the dispute and said it is likely to be decided by a floor vote.

The two sides also remain at odds over where patients should be allowed to file suits against HMOs.

Democrats argue that such suits should be allowed in state courts, where patients face better odds because they can request jury trials and where cases will be handled by judges already accustomed to medical malpractice suits and other personal injury claims.

Republicans are fighting to confine HMO suits to federal courts, arguing that health insurers might otherwise be held to different standards in different states. This issue also appears unlikely to be resolved before being put to a final floor vote.

Beyond these issues, the bill’s sponsors said they have reached compromises on every major remaining point of contention.

One key compromise, that has yet to be voted on, would shield the vast majority of employers from lawsuits over health care disputes. Only employers who are self-insured and administer their own health plans--roughly 6% of all employers who offer health coverage--would still be held liable, according to sponsors of the amendment.

Another agreement clarified that health plans would not be forced to cover treatments that they specifically exclude in their contracts with employers. An amendment making this change, offered by Sens. McCain and Evan Bayh (D-Ind.), was adopted on a 100-0 vote Wednesday.

Democrats said they were also close to resolving the thorny question of when existing state laws should be allowed to override the federal statute. The agreement underscores how fine some of these distinctions can be.

Democrats had said state laws would be allowed to stand as long as they were “substantially equivalent” to the federal statute, while Republicans set a lower standard of “consistent with.” Splitting the difference, sponsors of the patients’ bill agreed to support an amendment from Sen. John B. Breaux (D-La.) that would use the language “substantial compliance.”

Democrats continued to thwart Republican efforts to alter the patients’ bill.

The Senate voted 53 to 45 to defeat an amendment offered by Sen. Wayne Allard (R-Colo.) that would have exempted small businesses--those with 50 or fewer employees--from health care-related lawsuits by their workers.

On a 54-45 vote, the Senate defeated an amendment from Sens. Ben Nelson (D-Neb.) and Jon Kyl (R-Ariz.) that sought to protect HMOs from being sued over treatments specifically excluded in contracts. Sponsors of the patients’ bill said they supported the amendment’s intent but preferred the language offered by McCain and Bayh.

*

Times staff writer Edwin Chen contributed to this story.