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Read Making a Killing

home / healthcare / in the media

Los Angeles Times
Mar 14, 2003

by Vicki Kemper, Times Staff Writer

House Would Expand Malpractice Shield;

Under bill, hospitals, HMOs and others would also be protected from unlimited awards.
WASHINGTON:  The House, in a striking display of the political influence of the health-care industry, voted Thursday to protect not only physicians from unlimited malpractice awards but also health maintenance organizations, hospitals, drug companies, nursing homes and medical-device manufacturers. The 229-196 vote sends to the Senate a bill that, while modeled after California's 1975 malpractice reform law, contains significant differences.

Beyond the familiar arguments of what has become a perennial doctors versus lawyers debate was a little-noticed federal versus states' rights conflict. It put Republicans on record in support of provisions that would override some state laws, including those in California and 10 other states that give HMO patients the right to sue their health plans.

The bill's core provision would set a $250,000 cap on noneconomic, or pain and suffering, damages awarded victims of medical malpractice, and it says juries could not be told of the limit. It also would limit punitive damages, attorneys' fees and the time victims would have to take such a case to court.

House passage marked a huge victory for the nation's doctors, but their battle for malpractice reform is far from over. Tort-reform measures always have a harder time in the Senate, and some Senate Republicans have said they are uncomfortable with certain aspects of the House bill.

Even some physicians expressed reservations Thursday.

"We support HR 5 to the extent that it gets the agenda going on national tort reform," said Dr. Ronald Bangasser, president-elect of the California Medical Assn. "But there are aspects of HR 5 that we don't support and never have."

Bangasser said his group is working with Sen. Dianne Feinstein (D-Calif.) and Senate Majority Leader Bill Frist (R-Tenn.) on a measure that would more closely resemble California's malpractice law.

Supporters, mostly Republicans, said the bill was needed to protect doctors from "frivolous lawsuits" and put a stop to the trend of physicians leaving their practices or moving out of state because of skyrocketing malpractice premiums. In recent months, doctors in West Virginia and New Jersey have staged highly publicized walkouts to protest premium rates, and physicians in other states have threatened to follow suit.

"Malpractice has gotten so out of control it is now denying access," said Rep. Nancy L. Johnson (R-Conn.). "Ask any woman who has a high-risk pregnancy how hard it is to find an obstetrician."

Opponents of the bill, mostly Democrats, said it would have no effect on insurance rates but would make it harder for those involved in the most serious medical malpractice cases -- such as the family of Jesica Santillan, the 17-year-old transplant patient who died last month after receiving organs of the wrong blood type -- to find lawyers and receive just compensation.

In addition, said Rep. William D. Delahunt (D-Mass.), the bill "does nothing to reduce the staggering number of deaths" caused by medical errors, estimated in a 1999 Institute of Medicine study to be as many as 98,000 a year. He said it also does not force "bad doctors" from practice or regulate insurance rates. "The doctors are being deceived."

Beyond those hard-line partisan views, some Republicans and Democrats agree the U.S. malpractice system is in need of repair. They part company, however, on what the key problems are and how best to fix them. Thursday's debate provided no opportunity for meaningful discussion of the issues or consideration of alternatives. The GOP majority limited debate to two hours and prohibited lawmakers from offering amendments.

As a result, the legislators spent considerable time talking past each other and offering drastically different interpretations of what has become the gold standard of malpractice reform, California's 1975 Medical Injury Compensation Reform Act, or MICRA.

Republicans, physicians' groups and insurers credit that act with lowering malpractice premiums in California and keeping them at roughly half the national average.

Democrats, trial lawyers and consumer advocates say instead that it was California's 1988 insurance reform that is responsible for California's relatively low rates. And, they say, while the 1975 law has been good for doctors, it has made it harder for injured patients to take serious cases to court.

Many opponents of the House bill also note that the $250,000 cap on noneconomic damages is the same passed by California 28 years ago, while that amount translates to more than $840,000 in 2003 dollars.

"We are recommending nothing more, nothing less than the experience of the great state of California," said Rep. W.J. "Billy" Tauzin (R-La.) in arguing for the House bill. "We're doing what California did."

But California Reps. Zoe Lofgren (D-San Jose) and Howard L. Berman (D-North Hollywood) disputed that characterization.

"This is not an effort to federalize MICRA," Berman said. "This is a bald-faced effort to cherry-pick certain provisions ... add new people ... add new limits ... and then claim we are doing MICRA."

Unlike that reform law, for example, the House bill would put a limit on punitive damages, those designed to punish doctors for egregious, intentional actions. Such awards would be capped at twice the amount of economic damages awarded -- a combination of lost wages, medical costs and other expenses -- or $250,000, whichever is greater.

The bill's other major departure from the California reform law would be its extension of liability protections to HMOs, drug companies, nursing homes and medical-device makers.

Based on a 1999 state law that took effect in 2001, California residents can now sue their HMO -- if they have suffered significant damages and only after they have gone through an independent review process -- for interfering with care recommended by a physician.

Only a few lawsuits have been filed under the law, but several studies show that the provision permitting the suits has helped patients get requested medical treatment from their HMOs.

The House bill also would bar attorneys or judges from informing juries of the award limits and would prevent legislatures from passing laws requiring that juries be told how the law would affect their decisions.

"Juries are the last place where a person who's been injured can go to get a judgment not compromised by campaign contributions or corporate influence," said Jamie Court, executive director of Santa Monica-based Foundation for Taxpayer & Consumer Rights. "This bill would take that right away."


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