It's back to the drawing board for medical malpractice reform proponents. After the Senate failed last week to take up a bill capping noneconomic damages on malpractice lawsuits at $250,000, legislators now are left to ponder what their next step will be.
Democrats and two Republicans blocked the Republican bill, preventing it from reaching the Senate floor for a vote. That leaves open four scenarios-that the bill will be modified to gain broader Senate support; that the Senate will take up a bipartisan alternative bill introduced last week; that a completely different bill will be crafted for Senate consideration later in the year; or that Congress will drop the malpractice issue altogether.
Although last week's vote was not a formal vote on the bill, how senators voted reflected where they stood on the legislation backed by the Bush administration. Sixty votes were needed to bring the bill up for consideration. The final tally was 49-48, with three senators abstaining. No Democrats voted for the bill. The Republicans voting against it were Lindsey Graham of South Carolina and Richard Shelby of Alabama. The outcome was widely expected.
Even as Republicans maneuvered for Senate action on the bill, the GOP acknowledged it was unlikely to pass. Still, Republicans are hoping to use the vote against Democrats in next year's elections or even later this year, as pressure from lobbyists could force Democrats and dissenting Republicans who voted against the bill to relent in their opposition.
"We feel that folks should be on record to let the public know where they stand," said Nick Smith, a spokesman for Senate Majority Leader Bill Frist (R-Tenn.), a doctor who spearheaded the charge to get medical malpractice reform on the Senate's agenda.
"We've got a list and we'll work on whoever we need to," said Richard Davidson, president of the American Hospital Association, which favored the bill.
At the heart of the controversy surrounding the proposal is a provision limiting noneconomic damages to malpractice victims to a maximum of $250,000, a figure that has been roundly criticized as unfair by consumer advocates, Democrats and some Republicans.
A similar bill sponsored by Rep. James Greenwood (R-Pa.) passed the House in March. Since then the Senate has tried to reach a compromise bill. At one point, legislation that would have capped noneconomic damages at $500,000 was being considered but was never formally introduced amid opposition from doctors.
Republicans have portrayed frivolous malpractice lawsuits and unreasonable damage amounts as the reasons for skyrocketing premium increases that they say have forced doctors to stop practicing, putting patients at risk.
Last week, consumer advocacy organization Public Citizen released a study that found the number and amounts of payments to victims of malpractice have gone down in recent years. Total damages declined from $4.5 billion in 2001 to $4.2 billion in 2002, down almost 7%, while the number of malpractice payments dropped to 15,304 from 16,669, down 8.2%.
The provider community has stood firmly behind the Senate bill, pointing to the effectiveness of a California law, on which the Senate bill is modeled, at keeping down malpractice premiums in that state. Despite the results of last week's vote, American Medical Association President Donald Palmisano said the battle is not over.
"We will continue in a relentless fashion for medical liability reform," he said, adding that the AMA has made the issue its top priority.
Such reform may look very different, though, from what has been proposed so far. Immediately after last week's vote, senators said they would continue looking at possible changes to the bill.
Sen. John Ensign (R-Nev.), who introduced the Senate bill, did not rule out changing the dollar figure on the noneconomic cap and repealing federal antitrust exemptions given to insurers as part of a compromise. Critics said those exemptions have resulted in insurers colluding to raise malpractice premiums.
"Everything is on the table," Ensign said.
However, given the Democratic opposition to the bill and the previous failure to reach a compromise, the future of malpractice reform in this Congress appears dim.
Meanwhile, Sens. Dick Durbin (D-Ill.) and Graham last week introduced an alternative bill without caps on damages. The bill would provide more relief by offering tax credits to providers who experience large increases in premiums and repealing the federal antitrust exemptions for insurers. At a press conference announcing the bill, Durbin and Graham took swipes at the Senate and House bills.
"The bill in the House is one of the worst pieces of legislation I've ever seen in my life," Graham said. The AHA's Davidson, however, said the alternative bill fails to get at the heart of the malpractice issue.
"Caps are important," he said.