Seven months after failing to bring a broad malpractice bill up for a final vote, the Senate last week again failed to win approval of a more limited bill, further casting doubt that meaningful malpractice reform will occur any time soon.
But the legislative defeat did not seem to deter physician groups from continuing their fight on the issue.
"The AMA will be relentless in the pursuit of comprehensive medical liability reform," Donald Palmisano, president of the American Medical Association, told Modern Healthcare last week. "It will be difficult for senators to defer debate on this issue. People's lives are at risk."
The Senate fell 12 votes short of approving a bill to limit medical malpractice lawsuits by placing restrictions on lawsuits filed against OB/GYNs. Sixty votes were needed to prevent a Democratic filibuster against the bill, which was sponsored by Sen. John Ensign (R-Nev.). The final tally, 48-45, was a procedural vote on whether to bring the measure up for a vote.
The result was not a surprise, but it indicated how divided Congress is on the issue and more importantly signaled that the impasse between Democrats on the one hand and Republicans and the White House on the other may not be resolved during this Congress.
After last week's vote, other groups joined the AMA in vowing to push for federal action.
"What we think is going to happen is senators will better understand this crisis and enact legislation as it starts hitting their communities," said Lucia DiVenere, director of government relations and outreach at the American College of Obstetricians and Gynecologists.
Republicans will also continue to push for reform with Senate Majority Leader Bill Frist of Tennessee, who last week said he is determined to find a solution before the year is finished.
"It's certainly going to be a challenge this year," said Nick Smith, a spokesman for Frist. "But when we're talking about healthcare access ... we need to look at all areas healthcare costs are increasing. If we're truly going to address these issues, medical liability reform is one area we have to look at seriously."
Under Ensign's bill, noneconomic damages in cases involving OB/GYNs would have been capped at $250,000. Punitive damages would also have been limited to $250,000 or twice the damages for wages, medical costs and other economic losses, whichever of the two was greater. In most cases, a plaintiff would have had three years, starting from the time the injury was discovered, to file a lawsuit.
Last year the House passed a bill that would have placed a $250,000 cap on noneconomic damages for cases involving all doctors, but the bill failed 49-48 in the Senate, falling short of the 60 votes needed to prevent a Democratic filibuster. Since then Republicans and the Bush administration have put malpractice reform near the top of their healthcare agenda.
Recognizing the need for a shift in strategy, Republicans have adopted a more incremental approach, targeting specific provider groups rather than the entire community. In addition to the Ensign bill, Sen. Judd Gregg of New Hampshire is expected to introduce legislation seeking limits on economic damages in cases involving emergency room physicians. There have also been talks about offering relief for orthopedic providers. Smith said the Ensign bill may be folded into future malpractice bills.
Angela Gardner, a board member of the American College of Emergency Physicians, said the bill's failure does not deter the organization from moving ahead with its own reform efforts.
"We need reform on the federal level," she said.