Medical liability target of GOP push, Baltimore Sun, 12-25-04

The Baltimore Sun
Medical liability target of GOP push
Malpractice payout limits could cut health care costs, Republicans say; Critics blame insurers' greed
By Julie Hirschfeld Davis
Sun National Staff
December 25, 2004

WASHINGTON - As legislators in Maryland and other states try to curb skyrocketing medical liability costs, President Bush and Republicans in Congress are renewing their push for a sweeping national measure that would strictly limit payouts to patients in malpractice cases.

The state and federal efforts are fueled by Bush's strong support and by a well-funded lobbying effort from insurers and physicians designed to convince Americans that a malpractice crisis is driving up the cost of health care and threatening to cut off patients' access to their doctors.

Data from Public Opinion Strategies, a Virginia-based polling firm hired by the Republican Governors Association, indicate that almost half of voters think their governors and state legislators should act to hold down the cost of health care. Such voter interest could motivate Republican governors to take action over the next two years, the group believes. Gov. Robert L. Ehrlich Jr., who is pushing for the malpractice reform measure, is a longtime client of the firm.

Medical liability reform "doesn't tend to rate as high as the economy or affordable health care, but it's very, very easy to connect medical malpractice and the need for legal reform in a broader sense to those issues, and people get it; people make the connection," said Lori Weigel, a partner at the polling firm.

"It's not very difficult at all to move this issue up on voters' agenda," Weigel said.

Members of Congress have found the same thing, said House Majority Whip Roy Blunt of Missouri. Once worried that tackling the issue would invite the wrath of the powerful trial lawyers' lobby, House Republicans now vote proudly - and often - for legal changes, including those that would limit the pain and suffering awards that patients could be awarded in a malpractice trial.

"There's a growing understanding on the part of our [Republican] members that you can go home and successfully talk about these issues," Blunt said in a recent interview. There is "a broad-based, general belief that medical liability reform will have an impact on health care costs."

Soaring premiums

Spurring the debate are doctors' rapidly rising costs for medical malpractice insurance - especially for those in high-risk specialties such as obstetrics, neurosurgery and emergency medicine - which have driven physicians in some states to cut back their services, close their practices or move to areas where premiums are lower. Some emergency departments and trauma centers have closed, blaming prohibitively high liability costs.

"When I came to Washington, I thought that medical liability reform was a state issue," Bush said at his economic conference this month. But after calculating its "cost to society," which the president put at $27 billion a year, he said, "I decided it's a national issue that requires a national solution."

The average premium for an emergency physician was 56 percent higher last year than in 2002, according to the American College of Emergency Physicians. Maryland's largest provider of malpractice insurance raised annual premiums an average of 28 percent last year and has raised them again this month by an average of 33 percent.

Proponents of medical liability reform blame the soaring premiums on exorbitant jury awards in malpractice suits, and they are pushing hard for federal legislation that would sharply limit the amount that a patient could receive for pain and suffering - so called noneconomic damages - in such cases.

Congressional Republicans, who receive generous campaign contributions from supporters of the changes, have repeatedly passed measures that would limit such damages to $250,000 and limit attorney's fees - usually as much as one-third - for the cases.

Patients could still reap unlimited compensation to pay for their medical costs and economic damages, such as lost wages. State limits on the awards - such as Maryland's $650,000 limit in most cases - would remain.

"You can't insure infinity," said Richard E. Anderson, a physician who heads the Napa, Calif.-based medical malpractice insurer The Doctors Co. "If you're going to have unlimited liability - truly unlimited liability - then you've got to have unlimited premiums."

Opponents of such measures, including trial lawyers, consumer groups and most Democrats, say limiting damages deprives the most grievously harmed patients of their right to compensation for doctors' negligence. They blame the staggering rise in physicians' premiums on insurance companies that they say are greedily raising their rates to pad their profits.

"It's not reform to take away the legal rights of American families, which is what this is all about," said Carlton Carl, spokesman for the Association of Trial Lawyers of America, the leading group opposing medical liability changes.

The measures "will succeed only in penalizing people who have been injured through no fault of their own, and subsidizing the insurance industry, without reducing the instance of medical malpractice, without providing any greater access to quality health care, and without helping reduce the medical malpractice insurance premiums of doctors," Carl added.

The two blocs have clashed repeatedly in recent years, as the Republican-dominated House has passed medical malpractice reform bills, only to see them die in the more evenly divided Senate, where Democrats - who take millions each election cycle from the well-heeled trial lawyers' lobby - have blocked debate on the measures.

Senate Majority Leader Bill Frist of Tennessee, a surgeon whose family owns the country's largest for-profit hospital chain, has said he hopes this will be the year he can break the logjam.

"It's not a matter of if medical liability reform will occur at the federal level - it's a matter of when it will occur," said Rebecca Patchin, a pain specialist in Riverside, Calif. who is an American Medical Association trustee. "We will continue to work, and we're hopeful that this will be the year it will happen."

The association has spent more than $41 million lobbying Congress since 2002, the year it placed medical liability reform at the top of its legislative wish-list, according to data compiled by PoliticalMoneyLine, an online campaign finance tracker. The U.S. Chamber of Commerce Institute for Legal Reform, which pushes for a variety of legal changes including medical malpractice reform, spent $62.2 million lobbying Congress over the same period.

The AMA's political action committee doled out more than $4.5 million to "pro-medicine candidates" in the last election, according to Katherine Hatwell, a spokeswoman.

The AMA says its research shows that more than 70 percent of Americans favor measures that would allow patients to recover unlimited medical and economic damages but cap the "pain and suffering" awards they could receive.

People feel the issue hitting close to home, lawmakers said.

"The pressure of settling these endless malpractice suits has inflated the cost of medical malpractice insurance to the point where it's affecting people's ability to get access to medical care, and they feel that - they know it. It's an intolerable situation," said Rep. James C. Greenwood, the Pennsylvania Republican who sponsored the House-passed measure.

"This is an issue, I think, that is a smoldering one, and as more and more people confront limits on their access to health care, it's going to explode," said Greenwood, who is retiring from Congress to become the president of the Biotechnology Industry Association, a trade group.

Alternate proposal

The trial lawyers' association spent $10.2 million lobbying since 2002 and doled out $6 million to congressional candidates in the last election. The group, with the backing of some Democrats, is pushing for insurance reform that would force insurers to curb the growth in malpractice premiums and disclose when they are rising and to offer medical liability coverage in areas in which they offer other types of policies.

Senate Minority Leader Harry Reid of Nevada said he supports a measure authored by Sen. Richard J. Durbin of Illinois that would give doctors a tax credit for high liability premiums.

That proposal hews more closely to what Ehrlich has proposed: subsidizing malpractice insurance premiums through a government-operated, possibly taxpayer-funded account. The plan is not expected to bring down the $650,000 limit on non-economic damages, although it would eliminate an option judges now have to exceed the cap and award up to $975,000 in certain wrongful-death cases.