Malpractice reform advocates plan to make their case to Congress again next year despite long odds against getting comprehensive reform legislation enacted.
Provider groups seeking malpractice reform believe as many as five freshmen senators are supportive of limiting providers' risks in healthcare liability cases. If so, that would increase to 58 the likely number of Senate votes for such legislation.
Those 58 votes still would be two shy of the 60 necessary to get past legislative roadblocks allowed by the rules of the 100-member Senate. It also would be well short of the 67 necessary to override a veto from President Clinton, who has opposed legal reform legislation.
But even against those obstacles, advocates say they will persist in pushing legislation that would cap noneconomic awards known as "pain and suffering" judgments, limit how much providers pay for such awards to their share of the blame, and reduce malpractice awards when plaintiffs receive compensation for their injuries from healthcare or disability insurers or other sources.
Similar legislation, after easily passing the House, received 53 votes in the Senate last year, which allowed it to be blocked by a filibuster.
"It's not going to be different. We'll do it again," Rep. William Thomas (R-Calif.), chairman of the House Ways and Means health subcommittee, said of malpractice reform legislation.
Opponents of malpractice reform said caps on damages, which many providers have been seeking, hurt the most seriously injured plaintiffs who already are underpaid by the existing malpractice system.
Furthermore, they said if malpractice reform makes it more difficult for injured patients to sue and win cases against providers, the cost of treating their injuries is shifted unfairly to health insurers or other third-party payers, such as government programs.
But providers said reform legislation can save the government money because it will reduce malpractice insurance premiums, for which hospitals and physicians now receive reimbursement under the Medicare program.
That savings was confirmed by the Congressional Budget Office, which estimated seven-year savings of $200 million from malpractice reform measures included in Medicare reform legislation last year.
Those measures included limiting noneconomic damages to $250,000 and limiting providers' liability for such damages to their share of the blame.
That CBO estimate may give reform supporters the opening they need to pass a malpractice measure. As a money-saver, such a measure could be inserted into a balanced-budget bill, which cannot be blocked by a filibuster under Senate rules.