Medical malpractice reform is facing an uphill battle in the Senate, where one bipartisan compromise bill already has fallen apart. Despite the March passage of a reform bill in the House, and strong
backing from the White House and Senate Majority Leader Bill Frist, M.D., (R-Tenn.) any reform package would require a supermajority of 60 senators to pass. Only about 45 are on board now, according to Laura Gore, a spokesperson for the American College of Emergency Physicians.
Representatives of ACEP and the AMA joined the American College of Obstetricians and Gynecologists at ACOG's annual clinical meeting April 28 in New Orleans, where the physicians launched an intensified campaign appealing to patients to help win key Senate support for caps on noneconomic damages.
"We're going to target states with Democratic senators. It is no secret that they have vowed to be resistant," says Thomas Purdon, M.D., immediate past president of ACOG.
"It is undemocratic to just threaten filibuster," says Purdon, a professor of clinical OB/GYN at the University of Arizona Health Sciences Center in Tucson. "If we had a bill that could just go to joint conference committee, negotiations could occur and a bill that might be satisfactory to everyone might come out."
Almost three-quarters of Americans support limits on punitive awards, according to a poll released in March by the Health Care Liability Alliance, a Washington, D.C.-based advocacy group.
Doctors and hospitals say rising premium costs for malpractice insurance are creating an access crisis as doctors are forced to relocate or stop providing high-risk services.
A survey by the American Hospital Association of more than 1,000 hospitals concludes that obstetrics and emergency care are the most affected services. The House reform package is similar to one approved by that chamber last year. It caps punitive damages at $250,000 or twice economic damages, whichever is higher, but does not limit actual damages.
In the Senate, Sens. John Ensign (R-Nev.) and Judd Gregg (R-N.H.), chairman of the Health, Education, Labor and Pensions Committee, on March 12 introduced SB 607, which closely mirrors the House bill. But it is not likely to garner the 60 Senate votes needed to pass.
"I need Democratic support right now, otherwise we're not going to see any reform in medical liability," Frist says.
One bipartisan Senate compromise, originally supported by Frist and Sens. Dianne Feinstein (D-Calif.) and Mitch McConnell (R-Ky.), had a higher cap of $500,000.
It also included a $2 million catastrophic clause for malpractice cases that result in severe disfigurement, physical disability or death.
But Feinstein backed away from that measure last month.
Without support from doctors, who firmly endorse the $250,000 cap modeled after a California law called MICRA, Feinstein says the package does not have a chance.
"She does not support legislation we cannot get through the Senate," says Feinstein spokesperson Howard Gantman. "And she does not support the House bill because it has gone beyond medical liability to extend caps to HMOs, medical devices, drugs and a variety of other areas."
Premium babiesObstetrics/gynecology is among the three medical specialities with the highest professional liability premiums.
- $56,546 National average insurance premium for OB/GYNs in 2002. Nine states had areas with premiums over $100,000.
- $34,308 Average cost to defend a claim against an OB/GYN in 2000, highest of all specialties.
- $399,658 Average indemnity payment for OB/GYNs in 2000, second only to neurologists.
- 167% National median increase in liability premiums for OB/GYNs between 1982 and 1998.