Bill that would offer free malpractice coverage faces hurdles

By Mike Lillis - 07/24/10 03:35 PM ET

The bill, passed Thursday by the House Energy and Commerce Health subcommittee, would offer free malpractice coverage to doctors volunteering at community health centers (CHCs) — private facilities receiving federal funds to treat patients where care is lacking. 

The proposal represents an expansion of the Federal Tort Claims Act (FTCA), which currently covers malpractice costs for CHC employees, but not volunteers.

Therein lies the issue.

The politics of malpractice law is so thorny that, despite the House passing the bill twice in the last two years, Senate lawmakers have been reluctant to touch it. Indeed, there’s no Senate equivalent to the House proposal.

“They just don’t like to vote for tort reform,” said Shawn Martin, director of government relations at the American Osteopathic Association, which supports the House bill. “It’s an ideological issue.”

Julius Hobson, former lobbyist with the American Medical Association, echoed that message this week. “It’s a strange bill,” said Hobson, now senior policy analyst at Polsinelli Shughart. “It makes such good sense to do it, but it just can’t seem to get legs.”

One factor is that a number of states have adopted laws limiting liability or capping awards for non-economic damages under the FTCA, making the expansion to CHC volunteers unpopular with a group hugely influential on Capitol Hill: trial lawyers. 

“It’s just too difficult to move things that [the trial lawyers] don’t like,” Hobson said.

Ray De Lorenzi, spokesman for the American Association for Justice, said the trial lawyers’ group hasn’t lobbied on the bill at all. “We’re not opposed to it,” he said.  

Supporters say the impasse is unfortunate, arguing that an expansion of malpractice coverage to include volunteers would prove a powerful tool for recruiting physicians to treat some of the most vulnerable folks in the country. 

Martin said there are thousands of physicians — many retired or semi-retired — who’d like to volunteer at CHCs, but “they’re almost prohibited from doing so” because the cost of malpractice insurance is so high.

The issue popped up in 2005, when doctors rushed to help victims of Hurricane Katrina only to be met with questions about malpractice liability. Recognizing the urgency, policymakers expanded the FTCA umbrella to cover those physicians — but only temporarily.

Rep. Tim Murphy (R-Pa.), lead sponsor of the House bill, said a permanent expansion is needed to coincide with the arrival of the new healthcare reform law, which provides $11 billion for CHCs over the next five years — most of it going to build new facilities. By 2015, CHCs are expected to serve 40 million patients — double the number now — most of them low-income folks either uninsured or on public insurance.

“Health centers are about to take on an even greater responsibility of care for our nation,” Murphy said Thursday in a statement. “Although the amount of patients at community health centers is rapidly growing, the number of physicians available to treat these patients is decreasing.”

Unlike most bills that have hit a buzzsaw in the Senate, the controversy surrounding this one isn’t cost. Indeed, the Congressional Budget Office estimates the tab to be about $1.5 million per year.

Thursday’s vote in the House subcommittee was unanimous. A markup in the full committee could happen as early as next week, House sources said. 

It’s hardly the first time the legislation has come around. The House passed the language once in June 2008 as part of legislation renewing the federal CHC program. It was stripped in conference with the Senate, after some senators balked at the mention of tort reform, and end-of-the-year time constraints prevented any drawn-out negotiations.

Last November the House approved the bill again, this time as part of the lower chamber’s version of the Democrats’ healthcare reform bill. The provision was dropped when the surprise election of Sen. Scott Brown (R-Mass.) forced Democrats to abandon a conference and take up the Senate-passed bill.

Rep. Gene Green (D-Texas), the other lead sponsor, wondered how many times the House will have to consider the proposal. 

“This is the third time we’ve moved the bill out of committee,” he said in a statement Thursday. “I’m hoping that the Senate will be able to get behind [it].”

Craig Kennedy, associate vice president for federal and state affairs at the National Association of Community Health Centers, noted another group wary of the House proposal: the Justice Department, which opposed expanding FTCA to include CHC employees almost two decades ago. 

“Why expand the number of people you have to defend?” Kennedy asked.

A House aide on Friday offered another theory as to why the upper chamber seems indifferent to the bill. 

“It’s the Senate,” the aide said. “It’s where good ideas go to die.”