Malpractice Bill Hits Snag In Senate

The motion to invoke cloture on S. 11 lost by a 49-48 vote. S. 11 would place a $250,000 cap on non-economic damages in medical malpractice cases, limit punitive damages to $250,000 or two times compensatory damages, whichever is greater, and establish proportionate liability in malpractice cases.

Industry supporters of S. 11 expressed frustration with the Senate vote, but said they would still work to move the legislation.

"We are disappointed we couldn't get more votes," said Anne Sittmann, a representative of the Des Plaines, Ill.-based National Association of Independent Insurers.

"We hope to have another opportunity to address the issue," she added.

David Farmer, senior vice president of federal affairs with the Downers Grove, Ill.-based Alliance of American Insurers, said the vote was more a political exercise than and substantive one because it was pretty well understood that there would not be 60 votes.

But hopefully, Mr. Farmer said, the issue will come up again.

Republican leaders brought S. 11 up for a vote after efforts to craft a compromise that could draw bipartisan support apparently collapsed.

Some two months ago, reports began circulating that a compromise was possible if the caps on non-economic and punitive damages were increased to $500,000. However, sources said, a final agreement could not be reached.

The Senate did not vote on a substitute malpractice bill that was developed by Sens. Richard Durbin, D-Ill., and Lindsey Graham, R-S.C., and which would have targeted the insurance industry.

That legislation would repeal the insurance industry's McCarran-Ferguson antitrust immunity for allegations of price-fixing, bid-rigging and market allocations relating to medical malpractice insurance.

In addition, the Durbin-Graham bill would direct the Treasury Department to conduct a feasibility study on establishing a federal reinsurance fund to pay non-economic damages in medical malpractice cases.

According to a summary of the bill, this fund would not only help insurers with accurate pricing, it would protect them from rising reinsurance costs.

The legislation would also establish an independent advisory commission to study the causes and scope of the recent increases in medical malpractice premiums, as well as make recommendations on ways to reduce premiums.

As for tort reform, the Durbin-Graham bill would require all plaintiffs' attorneys to include an affidavit from a qualified health care profession on the nature of the injury and for the attorney to certify that the case is meritorious.

Attorneys who file erroneous certifications would be subject to civil penalties. It is uncertain whether the Durbin-Graham bill will come up now that S. 11 has been sidetracked.

President Bush in a statement said, "The medical liability crisis is driving good doctors out of medicine, and leaving patients in many communities without access to both basic and specialty medical services. The American people want and deserve access to doctors in their own communities, yet the number of physicians has decreased in states without reasonable litigation reforms. The liability crisis, particularly the use of defensive medicine, also imposes substantial costs on the Federal government and all Americans.

This is a national problem that deserves a national solution. The House of Representatives has already acted. For the sake of all Americans, it is time for the Senate to pass meaningful medical reform liability legislation and get it to my desk."