Sen. Dianne Feinstein (D-Calif.), one of the only vocal Democratic Senate champions for medical liability reform, has backed away for now from a compromise proposal she had been negotiating with Senate Majority Leader Bill Frist, M.D., (R-Tenn.) and Sen. Mitch McConnell (R-Ky.).
The compromise includes a $500,000 cap on noneconomic damages, which is twice the amount in a bill passed by the House on March 13. The House measure is based on a 28-year-old California law that many physicians claim has successfully controlled the growth of malpractice insurance premiums in that state.
The senators also were negotiating a $2 million catastrophic clause for noneconomic damages in cases of severe disfigurement, severe physical disability or death.
A Feinstein aide says that without support from doctors--or lawyers--Feinstein doesn't think the bill would have a chance legislatively. Feinstein still thinks reform is important, the aide says, but she wants support from doctors represented by the California Medical Association and the AMA.
Frist spokesperson Nick Smith says medical malpractice remains a priority for the leader and that Frist plans to continue working with Feinstein and others to craft a bi-partisan bill that will address the liability crisis.
Praising Feinstein for her "courage" in seeking a solution to the broken liability system, AMA President-elect Donald Palmisano, M.D., says the AMA has not rejected any proposal and is studying the current compromise measure.
"We will support a proven law that keeps access to care for patients, and the model AMA recommends for the nation is the California model," Palmisano says. "But AMA policy is flexible enough to explore another proven treatment. Like with any disease, you don't try an experimental treatment when you have a proven treatment."
CMA CEO Jack Lewin, M.D., says Feinstein remains a champion among Democrats for tort reform who will now work with her colleagues to build a coalition around a different set of parameters.
"There is no doubt this issue is not dead in the Senate, and Sen. Feinstein has said that," Lewin says. "She said the proposal with the $500,000 cap and the $2 million catastrophic clause was just unacceptable to physicians. The reason is quite simple: If you take the actuarial numbers and apply them to that strategy, it doesn't result in premium stabilization or address the problem of ongoing medical malpractice inflation."
Lewin says the CMA believes if the Senate has a few more months to understand the issue and the importance of staying with a $250,000 cap, it will develop a compromise acceptable to more senators.
"They have been barraged by propaganda from the trial bar," Lewin says. "We have not as effectively gotten to the members to provide a thoughtful response. What we need is time to build a better coalition."
Lewin says other Democratic senators engaged in the conversation include Sens. Blanche Lincoln of Arkansas, Thomas Carper of Delaware, Maria Cantwell of Washington and Ben Nelson of Nebraska.