The malpractice battle is over, but the war is just beginning.
With the House passing its malpractice reform bill last week, the Senate now will have a chance to consider similar legislation that has at its core a controversial $250,000 cap on jury awards.
But while the House vote, 229-196 in favor of the bill, was widely expected, any reform bill that gets passed by the Senate is likely to look drastically different.
Throughout the country, doctors have pushed malpractice reform to the forefront of healthcare issues by staging work stoppages to protest skyrocketing insurance premiums while other healthcare groups, including hospitals and insurers, also have lobbied hard for the measure.
At the heart of the bill-almost unanimously supported by Republicans and the Bush administration and widely opposed by Democrats-is a $250,000 limit on noneconomic damages. The bill leaves economic damages uncapped and limits punitive damages to $250,000 or double the economic damages, whichever is greater.
The House passed a similar bill last year, but it was never brought up in the then-Democratic controlled Senate. "This is a phony issue," said Jim Manley, spokesman for Sen. Edward Kennedy (D-Mass.).
Republicans now have the majority in the Senate, but it is far from certain that a bill mirroring the House bill will pass there. Unlike in the House, where a simple majority is needed for passage, 60 votes will be needed in the Senate to overcome an anticipated filibuster.
"Our goal is to work in a bipartisan manner ... and (put) together a bipartisan bill," said a Senate Republican aide, suggesting that any bill that comes out of the Senate may look substantially different from the bill passed last week.
Senate Democrats vehemently oppose the $250,000 cap on noneconomic damages and likely will demand its removal or a higher cap before they support any bill. Democrats also want to add tougher oversight to the House bill with tighter regulation of insurance companies.
Legislation could be introduced by the end of the month, said the Senate aide, who declined to speculate how many votes now exist for passing any malpractice reform bill.
Sponsored by Rep. Jim Greenwood (R-Pa.), the House bill is based on California's Medical Injury Compensation Reform Act, passed in 1976. Supporters of the federal legislation argue that the California law has led to slower growth of malpractice premiums.
In an interesting twist, the California Medical Association and California Gov. Gray Davis recently have expressed concern that the Greenwood bill could undermine the state's HMO reform legislation because the House bill also limits damages to health plans, drugmakers and medical device manufacturers.
Provider groups last week enthusiastically greeted the passage of the Greenwood bill. Mary Grealy, president of the Healthcare Leadership Council, a coalition of executives in the healthcare industry, called it a victory for doctors and patients over trial lawyers.
American Medical Association President Yank Coble Jr. praised the action. "By voting `yes' (on) medical liability reform legislation, Congress recognizes that our current medical liability system is broken and is threatening access to care for millions of Americans, particularly in regard to high-risk care and service," Coble said. In a written statement, the American Hospital Association said the bill "will ensure fair compensation and end lawsuit abuse."
Public Citizen, however, called the House passage "an act of cruelty. ... This legislation will do little or nothing to slow the increases in malpractice insurance premiums for doctors, because it is clear from all available evidence that insurance company pricing policies, not damage awards, are the cause of premium hikes."