Democrats in Senate block malpractice bill
By Anne Barnard, Globe Staff, 7/10/2003
WASHINGTON -- Senate Democrats yesterday blocked medical malpractice legislation that would have placeda
$250,000 cap on jury awards for pain and suffering, forcing Republicans to withdraw a measure that
President Bush has called central to his plans to curb what he sees as excessive civil litigation.
But the two sides vowed to make malpractice lawsuits and medical errors a focus of the presidential race and
congressional campaigns next year.
Medical malpractice could become a powerful political issue because it taps into visceral public concern about how
money appears to interfere with medicine. Doctors say that the rising cost of malpractice insurance
is forcing them out of business and threatening patients' access to specialty care in 19 states. Consumer groups say
they oppose limiting jury awards, because no monitoring system adequately holds doctors and
other health professionals accountable for medical errors, which a federal study in 1999 blamed for 98,000 deaths a year.
Senators from both parties agreed that those were serious problems that need to be addressed soon. But the vote
yesterday, almost entirely along party lines, set up a political clash between Republicans backed by
physician and hospital groups and Democrats supported by trial lawyers.
Republicans knew early this week that they could not muster the support of the 60 senators needed to overcome a
Democratic filibuster and bring the bill to the floor for debate. They called the
procedural vote anyway, in part to force opponents to identify themselves. The vote was
49 in favor of considering the bill and 48 against.
''This bill is a political document,'' said Senator Lindsey Graham of South Carolina, one of only two Republicans to
vote against considering the bill. ''They're going to take it on the campaign trail.''
Senate majority leader Bill Frist, Republican of Tennessee, said he cosponsored the legislation because of his
experience as a heart and lung surgeon. ''I see my colleagues leaving their specialties, trauma
centers closing, and therefore patients being hurt,'' he said.
As he was leaving the chamber after the vote, Frist added: ''It's not a campaign issue. It's an issue of policy and a
failure that has to be corrected. It will be resolved well before the election.''
But the American Association of Health Plans, which represents health insurers, said yesterday that it would
mobilize doctors to push presidential candidates to support a federal cap on malpractice damages.
President Bush, who has criticized ''junk lawsuits,'' scolded senators for failing to pass the bill, urging them to try
again and ''get it to my desk.'' The House approved a similar bill last year, voting largely
along party lines. In this charged atmosphere, each side sought to humanize its argument during two and half days of
debate on the Senate floor. Senator Richard J. Durbin, Democrat of Illinois, showed pictures
of Sherry Keller, a Georgia woman who broke her neck when she fell from a medical table after her gynecologist left her
alone and bleeding. ''Couldn't you have some love in your heart for the victims?'' he asked.
''There are victims on both sides of this,'' retorted Senator John Ensign, a Nevada Republican who is the bill's lead
sponsor. He showed a picture of a man who died after a Las Vegas car accident because a
trauma center there was closed because of the high cost of malpractice insurance.
Democrats argued that the bill is too broad, providing new protections rom liability to health maintenance
organizations, medical device companies, and pharmaceutical companies, in addition to doctors.
On Tuesday, Durbin joined Graham in offering an alternative bill that would give doctors tax breaks to help pay for
malpractice insurance, sanction lawyers for frivolous lawsuits, establish a national database
on medical errors, and force malpractice insurers to compete. But their alternative would do nothing to curb jury awards
to patients. The lawmakers cited the case of Taylor McCormack, a toddler who died at
Children's Hospital in Boston, to illustrate why pain-and-suffering awards are important.
Durbin and Graham attributed the crisis not just to plaintiffs' lawyers, but also to insurers' exemption from federal
antitrust law. They argued that increased competition would lower rates.
The malpractice issue is of great importance in Massachusetts, where health care is one of the largest industries.
The state's largest insurer, the ProMutual Group, raised premiums 12.5 percent last year, on
top of a 14 percent increase the year before. In Western Massachusetts, eight obstetricians-gynecologists left their
practice because they could not afford rising insurance costs.
The state already has a cap of $500,000 on noneconomic damages, also known as pain and suffering, that can be
overridden by juries. The Massachusetts Medical Society has proposed a bill that would eliminate a
jury's option to disregard the cap. The Senate bill would allow states to set caps higher than $250,000.
Dr. Thomas Sullivan, president of the Massachusetts Medical Society, urged the Senate to seek a compromise,
perhaps using some elements of the proposal made by Graham and Durbin. Sullivan said his group might
support the removal of the antitrust exemption of insurance companies, but added that the new proposal's most appealing
feature was its bipartisan sponsorship.
''We think it's interesting, but it doesn't have enough teeth,'' he said. ''It implies that there's nothing wrong with
the tort system.''
Senator Edward M. Kennedy said he would support the Durbin-Graham bill. ''The insurance industry has done a
good job of pitting patients against doctors,'' the Masschusetts Democrat said in an
interview. ''Unfortunately the doctors have been sucked into it.''
Senator Mitch McConnell of Kentucky, the chamber's second-ranking Republican, said that the party's leadership
would weigh all proposals.
''Everybody has their own view of who the culprit is here,'' he said, ''but nobody's denying there's a medical liability
crisis.''