America's doctors poured buckets of cash into the November election, helping to expand the Republican majority in the Senate and advance the odds of winning their most important legislative battle in years-a strict federal limit on noneconomic damages in medical malpractice lawsuits.
Yet despite helping the GOP gain a 55-45 edge in the Senate, where this controversial initiative has been consistently blocked by the Democrats, tort reform advocates remain far short of the 60 votes needed to break a filibuster and send the legislation to the floor for a vote.
"We're very hopeful," says Katie Orrico, director of the Washington office of the American Association of Neurological Surgeons and staff liaison to Doctors for Medical Liability Reform, a coalition of specialty organizations formed about two years ago specifically to lobby for changes in tort laws. "We picked up some additional votes in the Senate, but we're still shy of the magic number. We're getting closer."
"We think there are some Democrats who might come to the table now," she adds.
With four conservative freshman Republicans added to the mix, Orrico and other legislative observers say, the medical community can now count on 53 firm votes in favor of caps on pain-and-suffering awards, which President Bush has identified as one of the key legislative priorities in his second term. Orrico and other lobbyists hope they can finally sway some moderate Senate Democrats, including Dianne Feinstein of California and Ben Nelson of Nebraska.
"President Bush has spoken out on medical liability reform more than any president in the U.S.," says Donald Palmisano, past president of the American Medical Association. "We really believe we have the opportunity to do this. We know we have a significant obstacle, namely a filibuster, but we're very confident. This is going to happen-it's just a matter of when."
But opponents of these efforts-a coalition led by trial lawyers and consumer groups-remain confident that the balance of power hasn't shifted enough to trigger such a wholesale change in tort laws. While the House has passed different versions of malpractice reform on nine occasions since the GOP took control of the chamber in 1995, these measures have died in the Senate three times since the summer of 2003. It fell 11 votes short of the 60 needed during the most recent debate in February.
"(Damage limits are) not going to happen," declares Carlton Carl, spokesman for the Association of Trial Lawyers of America. "Sixty members of the U.S. Senate are not going to vote against the Constitution."
He says he isn't even convinced that the medical community can be guaranteed the votes of the four conservative Republicans elected to the Senate earlier this month-Richard Burr of North Carolina, Tom Coburn of Oklahoma, Jim DeMint of South Carolina and John Thune of South Dakota.
The doctors' lobby provided generous support to what it described as "pro-medicine candidates," winning six of the seven races in which the AMA's political action committee provided independent expenditures. In all, AMPAC poured $90,000 to $400,000 into those races, and spent a total of about $4.5 million for all its selected candidates during the last election cycle.
In the meantime, other physician-run political action committees, including Doctors for Medical Liability Reform, the umbrella group for about a dozen medical-specialty societies, tallied expenditures of about $12 million, Orrico says. Millions more were spent opposing those "pro-medicine" candidates.
The AMA has focused on medical liability reform for years as doctors struggle with skyrocketing insurance costs. Rates have doubled or tripled in recent years, especially for high-risk specialists like obstetricians and neurosurgeons, forcing many physicians to retire, restrict their practices or relocate, the AMA says.
AMA officials contend that the only way to solve the problem is to follow the lead of California, where a 1975 law capped noneconomic damages at $250,000. That enduring legislation, proponents of tort reform say, is why the typical premium for an obstetrician-gynecologist in the Los Angeles area is about $90,000 per year, while counterparts in Illinois pay more than $230,000.
Opponents of changes in tort laws claim that a cap on damages penalizes the victims of medical errors while doing little or nothing to reduce insurance premiums for doctors. Several studies have disputed the medical lobby's claim that California-style laws have any impact on physicians' insurance rates.
Earlier this month, a report from officials in Massachusetts-one of the AMA's so-called crisis states-said doctors' payments to settle malpractice lawsuits have dropped by 8% from the peak in 2001 at the same time insurance premiums have continued to rise, including an 11% boost imposed this year by the state's largest commercial insurer.
Palmisano says the AMA and other members of the national medical lobby will continue a two-pronged approach to tort reform, working to change laws both nationally and at the state level, where doctors had mixed results in several November initiatives tied to malpractice issues (See story, p. 30).
AMA President John Nelson says his group will be "relentless in our fight to enact reasonable reforms that allow patients access to the courtroom without sacrificing Americans' access to medical care."