Medical liability crisis: Tort reform bill goes to Congress

Physicians back the measure, which includes caps on noneconomic damage awards.

By Tanya Albert, AMNews staff. Feb. 24, 2003. Additional information

A bipartisan coalition in the House of Representatives has introduced legislation that marks the first step in this year's effort to pass medical tort reform at the national level.

The move in Congress came as doctors in several states launched work slowdowns or other protests against rapidly rising liability insurance rates. Several state legislatures are considering tort reform bills as high premiums force many physicians to stop offering high-risk procedures or to leave their states.

The congressional measure, offered Feb. 5 by Rep. James Greenwood (R, Pa.) along with 68 co-sponsors, would allow unlimited awards for economic damages, such as medical bills and loss of income, but proposes a $250,000 cap on noneconomic damages, commonly called pain and suffering awards.

The legislation -- the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2003, or HEALTH Act -- also would hold physicians responsible for only their portion of damages, impose a three-year statute of limitations on when most medical malpractice cases could be filed and limit punitive damages to whichever is greater, two times the economic damages or $250,000.

The bill is nearly identical to tort reform legislation that the House passed 217-203 last year, but that the Senate never considered.

The new bill drew immediate support from the American Medical Association, the Federation of American Hospitals, the American College of Physicians--American Society of Internal Medicine and other organizations that claim that excessive jury awards have led to increased insurance premiums.

Rep. Greenwood's bill is nearly identical to a measure passed by the House last year.

Those groups and the Bush administration favor legislation that includes a cap on pain and suffering awards because they say similar legislation passed in California more than two decades ago has helped keep insurance rates stable there.

"It brought a crisis state of 1975 to a state of stability," said AMA President-elect Donald J. Palmisano, MD. "The HEALTH Act will go a long way toward bringing common sense back to our liability system."

The bill, which Republicans generally support and Democrats generally oppose, is expected to pass the House again. On Feb. 10, a House subcommittee held a hearing on medical liability insurance in Greenwood's district in Bucks County, Pa. The legislation has already received support from key House members, including House Judiciary Committee Chair F. James Sensenbrenner Jr. (R, Wis.), Majority Leader Tom DeLay (R, Texas) and House Speaker J. Dennis Hastert (R, Ill.).

"It is my hope that [the HEALTH Act passes the committees quickly] so we can pass it on the House floor in March and get into negotiations with the Senate soon," Hastert said.

But not everyone agrees that a cap on pain and suffering awards would keep doctors' insurance rates in check. And an uphill battle is expected in the Senate.

A call to regulate insurers

The American Trial Lawyers Assn., consumer groups and a number of Democrats in the House and the Senate argue that regulating the insurance industry is the way to keep insurance affordable and available for physicians.

"There is absolutely no reason for the most seriously injured and most vulnerable patients to be penalized to subsidize the insurance industry," ATLA spokesman Carlton Carl said of the HEALTH Act. "The legislation would have no impact on malpractice insurance rates paid by doctors."

Some Democrats in Congress favor insurance regulation to keep premiums low.

In late January, four senators circulated a letter to their colleagues asking them to sign on to a bill called the Medical Malpractice Insurance Antitrust Act of 2003. The legislation is designed to ensure that "medical malpractice insurers cannot drive up doctors' premiums by engaging in price fixing, bid-rigging or market allocations," Sens. Patrick Leahy (D, Vt.), Richard Durbin (D, Ill.), Edward Kennedy (D, Mass.) and John Edwards (D, N.C.) stated in their letter.

The four senators said that legislative proposals that focus on award caps don't protect physicians and patients against skyrocketing costs.

"We believe that one essential step to lower medical malpractice premiums is to directly address the market behavior of the companies issuing malpractice policies," they wrote.

Edwards said the Senate also must make sure that legislation stops frivolous lawsuits, not serious cases, by requiring that lawyers fully investigate their cases before filing them.

Lawmakers also must "address the handful of bad doctors who are responsible for a majority of malpractice cases," Edwards added.

At press time, the senators had not yet introduced their bill. But a measure aimed at regulating the insurance industry had been reintroduced in the House.

Tide turning in Senate?

With Republicans holding a narrow majority in the Senate this year, medical groups hope that a bill similar to the HEALTH Act could pass in that chamber.

Sen. John Ensign (R, Nev.) last year introduced a bill that called for a $250,000 cap. But the bill went nowhere in the then-Democrat-controlled Senate.

Already this year a number of Senate Republicans, including Judiciary Committee Chair Orrin G. Hatch (R, Utah), have voiced support for changes that would reduce frivolous lawsuits.

"According to the Dept. of Health and Human Services, reforms such as those the president and I support [including a $250,000 cap] will reduce federal government costs by at least $28 billion and health care costs for all Americans by $60 billion," Hatch said.

The Senate Judiciary Committee and the Senate Health, Education, Labor and Pensions Committee held a joint hearing on Feb. 11 to discuss medical liability insurance reforms.

Tort reform proponents argue that recent polls show that most Americans support changes in the legal system where medical malpractice lawsuits are concerned.

"The public support for medical liability insurance reform is overwhelming," Dr. Palmisano said. "We are confident [the HEALTH Act] will pass the House, and we are working very hard to make sure the bill has success in the Senate."

ADDITIONAL INFORMATION:

Public support

A recent Gallup Organization poll found that the majority of Americans recognize that there is a medical liability insurance problem and support tort reform. According to the poll:

72% favor a limit on what patients can be awarded for pain and suffering.
57% say patients bring too many lawsuits against doctors.
64% say the issue of medical liability insurance is a crisis or major problem.

Weblink

Thomas, the federal legislative information service, for bill summary, status and full text of the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2003 (HR 5) (http://thomas.loc.gov/)

GOVERNMENT & MEDICINE