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The New York Times
Mar 12, 2003
by SHERYL GAY STOLBERG
Lobbyists on Both Sides Duel in the Medical Malpractice DebateWASHINGTON D.C.: Few people noticed the lobbyist hovering in the background when Mary Rasar came to the Capitol last week to tell the story of her father's death.
With three Republican senators by her side, and a gaggle of reporters before her, Ms. Rasar recounted how her father was injured in a car accident in Las Vegas the day after high liability premiums forced the local trauma center to close. He died in an emergency room -- "a tragic, tragic story," said Senator John Ensign, Republican of Nevada, vowing to press for caps on jury awards in malpractice cases.
Their joint appearance was arranged by the lobbyist, William Nixon, as another salvo in a war of dueling images in the medical malpractice debate. For weeks, trial lawyers and consumer groups fighting against caps have been bringing malpractice victims to the Capitol -- including a 17-year-old girl whose face had been ruined by botched surgeries and a woman whose breasts had been removed unnecessarily after a doctor wrongly diagnosed cancer. So Mr. Nixon, who represents hospitals, fired back with Ms. Rasar.
"The point," he said, "is to demonstrate that there are legitimate victims on both sides."
With the House expected on Thursday to take up legislation imposing a $250,000 cap on "pain and suffering" awards in malpractice cases, and the Senate planning to tackle medical liability later this month, lobbyists on both sides have been working at a fever pitch. The bill is expected to pass the House, but will probably face difficulty in the Senate, where some prominent Republicans say it must include an exception for egregious cases like that of Jesica Santillan, the 17-year-old who died after receiving a heart and lung of the wrong blood type.
Limiting jury awards has long been a high priority for Republicans and business interests, who believe malpractice legislation could open the door to a broader tort reform agenda. President Bush has been attacking trial lawyers -- and, by extension, the Democrats they support -- for "frivolous lawsuits," and he has invited a dozen House members to the White House on Wednesday to try to increase support for the House measure. With the president's backing and Republicans' running both the House and Senate, proponents say their goal is within reach.
"This is the first time in a decade that there has been an opportunity for real legal reform," said Karen Ignagni, president of the American Association of Health Plans, which represents managed care organizations. "All the key actors in the health care system are now united."
Mr. Nixon's client, the Coalition for Affordable and Reliable Health Care, is a perfect example. It was founded last September by the Baylor Health Care System in Texas and several other hospitals with one goal, overhauling malpractice law to bring down insurance premiums. "For the first time," he said, "they feel they are in striking distance."
The debate has also made for new lobbying alliances on Capitol Hill, and shattered some old ones. Last year, the American Medical Association, which represents doctors, was working hand in hand with the Association of Trial Lawyers of America -- and against Ms. Ignagni's group -- to promote legislation enabling patients to sue their health insurers. Now, the A.M.A. has joined with the insurance industry. Lobbyists for the trial lawyers complain they cannot get the doctors to talk to them.
Dr. Donald A. Palmisano, the A.M.A.'s president-elect, says revamping liability laws is the association's No. 1 legislative priority. He recalled meeting President Bush in July in High Point, N.C., on the day the president gave his first speech on the topic.
"He looked right at me and he said, 'We can get medical liability reform now if you will go to the grass roots,' " Dr. Palmisano said.
To that end, the association is trying to raise $15 million for a nationwide media campaign. Doctors around the country have rallied to the cause, waging a series of highly publicized walkouts and protests. Though local chapters have been behind the rallies, Dr. Palmisano has been flying around the country to attend them. The powerful images have not been lost on lawmakers.
"They've demonstrated with their feet," said Representative Billy Tauzin, the Louisiana Republican who is chairman of the House Energy and Commerce Committee, which last week sent the malpractice bill to the full House for a vote.
Mr. Tauzin was among several Republicans, including President Bush, who addressed more than 600 doctors last week at the A.M.A.'s National Advocacy Conference. Over breakfast of eggs, toast, peaches and sausage, the doctor-lobbyists, who later fanned out across Capitol Hill, got some friendly advice from Senator Bill Frist -- the Republican leader and a heart transplant surgeon.
Do not be satisfied with seeing Congressional staffs, Dr. Frist advised, adding, "Say, 'I just want to see the senator for two minutes.' "
In addition to the war of images, there has been a war of words and numbers, with proponents trying to link high liability premiums to high jury awards, and opponents trying to disprove a link, in part by citing studies showing the influence of larger economic trends on insurance costs. Last week, Tommy G. Thompson, the secretary of health and human services, announced a new study that found "the main factor causing the crisis is the rise in mega-awards and settlements," including jury awards that can exceed $1 million. Opponents responded with their own statistics, from the government's National Practitioner Data Bank, showing the average jury verdict, far from being in the millions, is roughly $400,000 and the average settlement about $200,000.
"It's like an escalating arms race, but with disinformation," said Jamie Court, executive director of the Foundation for Taxpayer and Consumer Rights, the advocacy group that put out the lower figures. "There is so much floating information around that no one knows what to believe, and almost every statistic becomes useless."
Also floating around, this being Washington, is money. Proponents of malpractice change include some of Washington's most powerful and well-financed lobbies. According to the Center for Responsive Politics, which tracks campaign spending, the A.M.A. contributed $2.7 million to candidates in the 2002 election cycle, with 60 percent going to Republicans. The American Hospital Association, which strongly backs malpractice law changes, gave $1.9 million, 53 percent of it to Republicans.
But the opponents are also well financed. The trial lawyers contributed $3.7 million in the 2002 election cycle, 89 percent of it to Democrats.
"I've been working this for 20 years, and it has often seemed very close," said Linda Lipsen, who is running the trial lawyers' lobbying effort. Recently, the group brought 120 members to Washington to knock on lawmakers' doors. "It's very arduous," Ms. Lipsen said, "but we feel like if we can tell the story of the patients that our lawyers represent, the justice system should prevail."
And so, almost daily, those stories are being told. Last month, the Center for Justice and Democracy, a consumer group, brought 30 victims of medical malpractice to Washington, and staged a "rump hearing" before Democrats on the House Judiciary Committee. The patients ran the gamut, from a man whose right lung was removed after doctors discovered a tumor in the left lung to Linda McDougal, the woman who underwent an unnecessary double mastectomy after pathologists erroneously diagnosed breast cancer.
On Wednesday, the day before the House is scheduled to vote, the trial lawyers will be bringing Ms. McDougal back to the Capitol, for an appearance with the minority leader of the Senate, Tom Daschle, and his counterpart in the House, Nancy Pelosi. But Mr. Nixon, the hospital lobbyist, is ready. He is bringing back Ms. Rasar, for an appearance with Speaker J. Dennis Hastert.
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