Measure stalls in Senate: "We'll be back," say tort reformers

The AMA says the bipartisan offering in the Durbin-Graham bill won't solve the crisis facing physicians and their patients.

By Tanya Albert, AMNews staff. July 28, 2003.

Physicians, insurers and other tort reform backers say the recent Senate vote blocking a measure that included a $250,000 noneconomic damages cap on medical malpractice lawsuits isn't a sign of gloom and doom.

If anything, it seems to have strengthened proponents' resolve to see federal legislation enacted.

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Topic: Liability crisis

Republican Senate leaders are currently discussing their next move in the tort reform battle, and supporters say the chamber could revisit the issue as early as this fall.

"Medical liability is going to pass at the federal level," AMA President Donald J. Palmisano, MD, said. "It's a question of when, not if."

"This is a stop along the road," added Richard Anderson, MD, chair of The Doctors Company, a physician-owned, national medical liability insurer. "I am not discouraged."

In fact, advocates say there are several reasons to be encouraged. President George W. Bush supports legislation. The House of Representatives in March passed a bill that includes a $250,000 noneconomic damages cap. And a Gallup poll shows that 72% of Americans favor caps on noneconomic damages.

"The only people we haven't convinced are the Democrats in the Senate," Dr. Anderson said. "When they go home, I think they will find that their constituents want this."

With physicians continuing to leave medicine because of high insurance rates, both sides acknowledge that the issue won't be going away anytime soon. During Senate floor debate, Republicans said they would make tort reform a campaign issue.

"The American public will know where the responsibility lies" for legislation not being passed, Dr. Palmisano said.

The vow from tort reform champions to continue their push comes after a 49-48 Senate vote July 9 -- almost entirely along party lines -- not to let debate continue on the Patients First Act of 2003, introduced by Sen. John Ensign (R, Nev.) and endorsed by the Senate majority leadership as well as the AMA. The measure needed 60 votes in order to clear this procedural hurdle.

In addition to capping noneconomic damages, the measure proposed limiting punitive damages, setting a statute of limitations on filing lawsuits and establishing tougher standards for expert witnesses.

"I am disappointed that the Senate has failed to pass medical liability reform legislation," President Bush said in a statement. "For the sake of all Americans, it is time for the Senate to pass meaningful medical reform liability legislation and get it to my desk."

Who will cross the clearly drawn line?

According to the AMA, 19 states are in the midst of a medical liability crisis from which doctors are fleeing, retiring early or discontinuing high-risk services because they can't afford or can't obtain liability insurance.

Both sides of the Senate aisle agree there is a problem and that some patients are losing access to their doctors, particularly OBs and neurosurgeons. But disagreement persists about the solution. As the debate continues to brew, each camp becomes more entrenched in its own agenda.

Physicians, hospitals, insurers, the Bush administration and most Republicans say that tort reform that includes a $250,000 cap is desperately needed to stop doctors from leaving certain states or from discontinuing services. They point to California's experience with a $250,000 cap on noneconomic damages -- the state is not seeing the same rate of insurance premium increases as states without such a limit -- as the reason why a federal award ceiling is needed.

"We tell opponents that if they oppose proven reforms, then it is their responsibility to give proven alternatives," Dr. Palmisano said.

Opponents include Democrats, trial lawyers and some consumer groups. And that side already has launched what it sees as the next volley in the debate.

Sens. Dick Durbin (D, Ill.) and Lindsey Graham (R, S.C.) -- one of the few Republicans who voted against continuing debate on the Patients First Act -- introduced July 8 a bipartisan bill that would provide immediate tax relief to physicians who experience above-average increases in their premiums.

The bill also would establish a voluntary system for health professionals to share error information free from legal discovery so they could learn from one another's mistakes and create a new Center for Quality Improvement and Patient Safety in the Agency for Healthcare Research and Quality to promote patient safety.

"This is a complex problem that can't be solved by tort reforms and imposing arbitrary caps on jury verdicts," Durbin said in a statement.

"Restricting noneconomic damages to a total of $250,000 is unfair to minors and at-home spouses who have a hard time documenting economic loss," Graham added in a statement. A spokesman for Graham said the senator wants to get back to a bipartisan spirit on the issue.

But the AMA says the bipartisan spirit being offered in the Durbin-Graham bill won't solve the crisis facing physicians and their patients.

"It's a Band-Aid on a bleeding artery," Dr. Palmisano said. "It puts another tax on the public for the broken medical liability system." He added that the AMA will be relentless as it continues to pursue liability reform that includes proven solutions.

"The practice and the promise of medicine depend on it," Dr. Palmisano said in a speech to the National Press Club after the Senate vote. "At stake is the health, indeed the very lives, of our patients."

GOVERNMENT & MEDICINE