Med Mal Reform Faces Uphill Senate Battle
By Steven Brostoff
Washington
The parliamentary rules of the Senate will make it much more difficult to achieve the extensive medical malpractice reforms recently approved by the House, industry representatives believe.
"The whole effort must be geared towards getting 60 votes," said Ken Schloman, Washington counsel for the Downers Grove, Ill.-based Alliance of American Insurers, referring to the number of votes needed in the Senate to shut down a possible filibuster.
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, believes a majority of Senators would support a $250,000 cap, but 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 times compensatory, whichever is greater; and a three-year statute of limitations for bringing medical malpractice cases dating from the time the claimant discovers or should have discovered the harm.
Also in the background is legislation introduced by Sen. Patrick Leahy, D-Ver., S. 352, that would repeal the industrys 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.
While she said Senate debate on med mal reform is likely to start very soon, the real question 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, just as after 9/11 attacks, he believes Congress will want to continue working.
Reproduced from National Underwriter Edition, March 24, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved. Copyright in this article as an independent work may be held by the author.
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