Med Mal Reform Faces Uphill Senate Battle

Melissa Shelk, vice president of federal government relations for the Washington-based American Insurance Association, said that discussions are under way between Republicans and Democrats to see if some type of bipartisan legislation is possible.

It appears, she said, that for any bill to be bipartisan, it will have to include a catastrophic exception to the $250,000 cap on non-economic damages contained in H.R. 5, the legislation recently approved by the House in a narrow, party-line vote.

Monte Ward, vice president of federal affairs for the Indianapolis-based National Association of Mutual Insurance Companies agreed.

While he believes a majority of the Senate would support a $250,000 cap, Mr. Ward said he does not believe there are 60 votes.

Legislation closely patterned after H.R. 5 has been introduced in the Senate by Sen. John Ensign, R-Nev. The bill, S. 607, while not identical to H.R. 5, contains many of the same features.

These include the $250,000 cap on non-economic damages, a cap on punitive damages of $250,000 or two time compensatory damages, whichever is greater and a three-year statute of limitation for bringing medical malpractice cases dating from the time the claimant discovers or should have discovered the harm.

In a statement accompanying introduction of his legislation, Sen. Ensign noted that his own state of Nevada has experienced a medical care crisis due to the liability system.

"The lives of too many people are at risk because of the increasing number of doctors who can no longer practice due to outrageous malpractice insurance rates," Sen. Ensign said.

But it is not clear whether the Senate will actually consider Sen. Ensign's bill, or put together an alternative legislative vehicle.

Also in the background is S. 352, introduced by Sen. Patrick Leahy, D-Ver., that would repeal the industry's McCarran-Ferguson antitrust immunity for allegations of price-fixing, bid-rigging and market allocation relating to medical malpractice insurance.

Anne Sittmann, a representative of the Des Plaines, Ill.-based National Association of Independent Insurers, said S. 352 could be offered as an amendment to any medical malpractice bill.

The Senate debate on medical malpractice reform is likely to start very soon, Ms. Shelk said. The real question, she said, is how the overall legislative process might be slowed down by a war with Iraq.

She noted that Senate Majority Leader Bill Frist, R-Tenn., said that debate could begin the week of March 24. The hope, Ms. Shelk said, is that legislation can be enacted before Congress begins its Spring Recess on April 14.

Mr. Ward said he believes the Senate will try to move the bill, even if the war continues.

President Bush, he noted, has identified malpractice reform as a priority. Moreover, Mr. Ward said, he believes Congress will want to continue working just as it did after the Sept. 11, 2001 terrorist attack.