Med-Mal Cap Dies In Senate

WASHINGTON–Legislation to cap non-economic “pain and suffering” damages in medical malpractice lawsuits once again failed yesterday to win enough support in the Senate to stave off a filibuster.

Only 48 senators, all Republicans, voted in favor of a motion for cloture for Senate Bill 22, the Medical Care Access Protection Act. Cloture motions, which set a time limit on debate and eliminate the possibility of a filibuster, require 60 votes for passage.

Senate Bill 23, which would have established a similar cap specifically for cases involving obstetrician/gynecological specialists, also failed to win cloture, garnering only 49 votes.

“Five times in the last four years, Senate Democrats have obstructed meaningful medical liability reform that would have ensured access to quality, affordable health care,” said Senate Majority Leader Bill Frist, R-Tenn., after the vote.

“Frivolous lawsuits and excessive payouts force doctors out of business, drive up medical costs and ultimately jeopardize the health of all Americans. It's unfortunate that Democrats have chosen to help line the pockets of trial lawyers rather than to help meet the health care needs of this nation,” Sen. Frist added.

During debate before the vote was taken, Democrats blasted Republican supporters of the bill for failing to consult with Democrats or move the bill through committee, where Democrats could have voiced their concerns and negotiated changes.

“There has not been a single committee hearing. There has not been a single witness…not a single opportunity to amend, or a single opportunity to improve, compromise or negotiate,” said Senate Minority Leader Harry Reid, D-Nev. “With this insurance industry legislation, every step of the process has been abandoned.”

Sen. Reid further criticized Republicans for raising an issue that already has failed to win approval several times, claiming that the bill was only raised for political reasons and took legislative time away from more pressing issues, such as the budget deficit, high energy prices or the war in Iraq.

“Why has the Majority proceeded in this manner?” Sen. Reid asked. “Because this is not a serious exercise in legislating, it is a political stunt being performed for the sole purpose of allowing Republicans to go back to their special interest friends and say, 'Look what we have tried to do to help.' But even they should not be fooled by these transparent theatrics.”

Although it was unlikely that the bill would ever gain cloture, with even several senators noting its slim chances during debate, insurance groups expressed displeasure with the outcome.

Melissa Shelk, vice president of federal affairs for the American Insurance Association, said the group was “disappointed that cloture was not invoked,” on the bill, which the AIA supports. “Failure to invoke cloture precludes a full debate on this important issue in the U.S. Senate.”

“Those who sided with patients had both the facts and the public on their side,” said Ken Suggs, president of the Association of Trial Lawyers of America.

He said advocates of the bill like Sen. Frist and Sen. Rick Santorum, R-Pa., “sold out their constituents and patients to pay back friends in the insurance industry who are bankrolling their campaigns. They failed.”

In Mr. Suggs view, the legislation “would have imposed a one-size-fits-all answer to all medical malpractice claims, limiting non-economic damages to $250,000, regardless of the pain inflicted as the result of medical negligence or the extent of physical damage. Women mistakenly rendered sterile, as well as people who had healthy limbs removed, would be afforded the same amount for pain and suffering as someone with decidedly lesser injuries.”