The chances of a federal malpractice reform bill becoming law took a hit as deep-rooted partisan differences surfaced over how to solve the alleged malpractice crisis. Hearings begun by the Senate last week made clear that reforming the nation's malpractice laws will be an uphill battle fought along party lines, even as there were calls for bipartisan cooperation.
"This is a crass, pure economic fight," said Sen. Judd Gregg, (R-N.H.), chairman of the Health, Education, Labor and Pensions Committee, which held the Feb. 11 hearing along with the Judiciary Committee.
Before the Senate joint-committee hearing began, a consumer's group, a coalition of insurers and the U.S. Chamber of Commerce each held separate press events to bring attention to malpractice reform, highlighting the urgency of the issue.
But while Republicans are looking at caps on damages as the centerpiece to reforming malpractice laws, Democrats are targeting insurers instead.
Two weeks ago, Rep. Jim Greenwood (R-Pa.) reintroduced a bill that would cap noneconomic damages in malpractice suits at $250,000 and place in most cases a three-year statute of limitations on when a suit can be filed. The bill, which passed last year in the House 217-203, leaves economic damages such as lost wages or the cost of medical care uncapped. Modeled after legislation in California, the bill also would allow states to raise the $250,000 cap on noneconomic damages.
Many providers have thrown their support behind the Greenwood bill, including the American Medical Association, the American Hospital Association and others that have made liability reform one of their top, if not the top, legislative priorities.
"Unfortunately, the current liability system has failed patients," Donald Palmisano, the AMA's president-elect, said in a written statement.
In an interview, Palmisano dismissed the notion that passage of a federal bill is a long shot. He said the issue continues to gain momentum, and the public will push Congress to pass some form of tort reform this year. The AMA said any such reform must include the $250,000 noneconomic damage cap.
"We certainly are going to advocate that," Palmisano said. "We believe that the studies have shown the $250,000 cap is effective."
The Democrat-controlled Senate last year failed to consider reforming liability laws. But even with a GOP majority in the Senate now, getting the 60 votes needed for passage of a bill that includes capping damages is at best questionable. Passage in the Republican-controlled House is widely expected.
"It's going to be tough. It's going to be very tough in the Senate," Greenwood said at the Chamber of Commerce event. "I think (Bill) Frist (the Senate majority leader) can marshal 51, 52 votes tomorrow. Unfortunately, that's not going to be enough."
While Republicans are focusing their attention on award caps, Democrats are setting their sights on a different target: insurance companies.
Sen. Patrick Leahy (D-Vt.) last week introduced legislation that would repeal the long-standing antitrust exemption given to insurers that allows them to share claim data. The bill specifically is aimed at malpractice carriers and stops them from conspiring to set rates, a practice the industry vehemently denies. Observers give the bill a slim chance of passage unless it is folded into a compromise reform bill.
If the Senate does pass a reform bill this year, it may look significantly different from Greenwood's proposal in the House.
"To pick up significant Democrats, proponents of medical liability reform will have to compromise and may have to agree to higher caps or no caps at all on pain and suffering," said Chip Kahn, president of the Federation of American Hospitals, which represents for-profit hospitals.
The AHA, however, would oppose any package that does not include caps on damages.
"Our preference is to get (legislation) done this year," said Tom Nickels, senior vice president of federal relations at the AHA. "If we have to compromise, we're open to it, but only to a certain degree."