House passes tort reform; Senate bill faces struggle
Physicians stress that reforms are necessary to curb the burgeoning
medical liability crisis.
By
Tanya Albert, AMNews staff. Oct. 14, 2002.
Additional information
Physicians are thrilled that the House of Representatives in September
passed tort reform legislation that would, among other things, cap
noneconomic damages in medical malpractice cases at $250,000.
But they realize that getting a bill to President Bush's desk this year
likely won't happen because passage of a companion bill in the Senate
before the new year is considered a long shot.
Representatives passed by a 217-203 vote the Help Efficient,
Accessible, Low Cost, Timely Healthcare Act of 2002, a bill commonly known
as the HEALTH Act. The vote was split mainly down party lines, but 15
Republicans voted against the bill and 14 Democrats voted for it.
Physicians and insurers said the bill's reforms are necessary to stop
soaring medical liability insurance rates that over the past 18 months
have been driving some physicians out of states where liability insurance
premiums are unaffordable or insurance is unavailable. The HEALTH Act is
modeled after California's tort reform -- commonly known as MICRA -- that
many experts said has helped keep insurance affordable in that state.
"The record in California clearly documents the beneficial effects of
common-sense medical liability reform," said AMA President-elect Donald J.
Palmisano, MD. "This is an access problem for patients. We need to fix the
problem. Onward to the Senate."
Physicians believe that by capping noneconomic damages, the bill would
guard insurance companies from the threat of large pain and suffering jury
awards, which on some occasions have reached tens of millions of dollars.
That, in turn, would give companies more predictability regarding what
they will have to pay out, thus helping to keep insurance rates
affordable.
A wide array of groups agree, from the American Assn. of Health Plans
and the National Assn. of Manufacturers to the American Health Care Assn.
and the National Center for Assisted Living. The Bush administration
supports the bill, which passed Sept. 26, saying it would improve access
to quality care while reducing health care costs.
"Americans increasingly are finding that their doctors are closing
their practices, limiting the types of patients they will see or leaving
communities where they have long practiced because they cannot afford the
rapidly increasing cost of malpractice insurance or because it is simply
not available," Health and Human Services Secretary Tommy Thompson said
after the House vote. "This legislation moves us in the direction of
addressing this problem."
Beyond the noneconomic damages cap, the bill would:
- Require plaintiffs to file lawsuits -- with few exceptions -- within
three years of the injury.
- Make physicians financially responsibile only for their share of the
liability.
- Impose no limits on awards for economic damages and future medical
costs.
- Set a higher threshold for juries to award punitive damages, which
would be limited to the greater of two times the amount of economic
damages awarded or $250,000.
- Allow the court to limit what a plaintiff's attorney could recover.
- Permit physicians to pay future damages over time, instead of in one
lump sum.
- Not supersede state caps that are already in place.
But critics of the bill said the cap takes away injured patients'
rights to awards they may deserve, and that the HEALTH Act won't solve the
problems some physicians are experiencing with liability insurance.
"No [insurance company] savings are required to be passed on to the
doctors," Rep. Peter DeFazio (D, Ore.) said during the House debate. "This
is another corporate bailout."
Rep. Anna Eshoo (D, Calif.) said she did not support the bill because
the $250,000 cap also applied to lawsuits against drug manufacturers and
medical device manufacturers.
The House bill would limit noneconomic damages to $250,000.
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"This is not MICRA," Eshoo said. "It does not honor the people we
represent."
Those views will likely be shared by the majority of members in the
Democrat-controlled Senate.
A companion bill in that chamber -- also known as the HEALTH Act -- has
been assigned to the Senate Judiciary Committee, but it's not expected to
pass out of committee this year because senators are focused on homeland
security and a possible war with Iraq.
And if the measure were to make it to the Senate floor this year, it
doesn't appear to have the votes necessary to pass. The bill, introduced
by Sen. John Ensign (R, Nev.), lacks the bipartisan support that the House
version has.
Also, during debate over Medicare prescription drugs earlier this year,
senators rejected an amendment that would have limited fees that lawyers
can collect in medical malpractice cases and allowed physicians to pay
large awards over time instead of in one large payment.
But with the momentum from the House passage and the possibility of a
GOP takeover of the Senate in November's elections, physicians hold out
hope that the HEALTH Act could gain Senate approval next year.
"Maybe after the election things will change in the Senate and it could
get passed," said Mark Blackwood, MD, a Cleveland, Miss.,
obstetrician-gynecologist. Dr. Blackwood closed his practice for 10 days
this summer because he could not find liability insurance.
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ADDITIONAL INFORMATION:
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Vote results for the HEALTH act (roll call 421)
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Copyright 2002 American Medical Association. All
rights reserved.
