Prognosis for a National Tort Reform Solution
After the Senate Democrats’ refusal last July to vote on S.11, the comprehensive bill protecting all doctors from excessive medical liability awards, Republican Senate leaders crafted a political strategy for 2004 to keep medical liability at the forefront of their legislative agenda. Rather than focus on broad reforms, they have introduced a series of incremental bills aimed at protecting specific segments within the medical community. This strategy has forced Senate Democrats to go on the record with their “no” votes on medical malpractice reform.
Senate leadership introduced S.2061, the Healthy Mothers and Healthy Babies Access to Care Act, which limited medical liability awards against obstetricians and gynecologists. S.2207, the Pregnancy and Trauma Care Access Protection Act of 2004, limited medical liability awards against obstetricians, gynecologists, and emergency and trauma care professionals. The Senate Democrats stopped both bills from moving forward.
The Bush administration endorsed the bills in an effort to improve the medical malpractice insurance situation, but many did not support the bills because they focused too narrowly on providing protections for only a few specialties. Additionally, the bills did not address other key reforms, such as collateral source.
Also stalled in the Senate were S.1751, a bill to make it easier to move class action lawsuits to federal district courts, and S.1125, a bill to establish a fund to pay no-fault claims related to asbestos exposure. Bills to protect rural health care providers and Good Samaritans from large damage awards may still be introduced during this session.
H.R.4280, a tort reform bill based on California’s MICRA provisions, passed the House on May 12 by a vote of 229–197. Although the bill may be debated in the Senate, it is unlikely to move forward.
The prognosis for national tort reform is poor for this year. Twelve more votes are needed in order for tort reform to pass in the U.S. Senate in the next session. To reach the required 60 votes, the Republican leadership must convince its own members—Michael Crapo (Idaho), Lindsey Graham (South Carolina), and Richard Shelby (Alabama)—to vote with them, and other Democratic members will need to join with Zell Miller of Georgia to vote in favor of tort reform. We need to see more proponents of tort reform brought into the ranks in the November elections without losing ground on our pro-reform incumbents. Right now, it appears that the critical states in November will be Alaska, Colorado, Florida, Georgia, Illinois, Louisiana, North Carolina, and South Dakota.
It is very important to quiz the congressional candidates running in your district about their views on medical liability reform and, most particularly, on effective caps for noneconomic damages. Reward those who will fight for us by giving them your financial support, campaign time, and, of course, your vote. Look for more information on elections in the next issue of The Doctor’s Advocate.
State Activity
Nearly every state in legislative session in 2004 considered at least one bill on the subject of tort reform. Iowa, Kentucky, Maryland, Mississippi, Missouri, Oklahoma, Rhode Island, and Virginia all tackled medical liability bills that included a cap on noneconomic damages and other key provisions that have worked effectively in California. Some states, such as New Hampshire, considered creating a mandatory pretrial screening panel similar to the one that has worked successfully in Maine. Other states, like Colorado, had to fight to keep the effective laws they already have on the books.
Arizona, Pennsylvania, and Wyoming took up bills proposing a constitutional amendment that would allow caps for noneconomic damage awards. Tennessee considered a no-fault compensation system. Washington State looked at a package of proposals to improve patient safety and control costs for liability premiums. Montana legislators, not in session this year, had a legislative committee study their problems of insurance availability for hospitals and doctors. Doctors are circulating petitions in Florida for a constitutional amendment that would cap lawyers’ fees. Oregon and Nevada will have November ballot measures on medical liability reform.
I hope we are able to report wonderful success stories when state legislatures are adjourned and the November elections are over. Visit us on the Web at www.thedoctors.comfor more information on activities in your state and how you can get involved. You’ll find home page links to our State Legislative Reform Activities report and to our Legislative Action Center.
About the Author
Leona Egeland Siadek, Vice President, Government Relations.
The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.
The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.
The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.