Physician lobby shifts strategy on medical-liability reform

Although physician lobbyists recognize that their years-long quest for a federal law capping medical-malpractice lawsuit awards is unlikely to be fulfilled by the Democratic Congress, they are taking the long view.

Medical-liability reform remains a top legislative priority for groups such as the American Medical Association (AMA) and the myriad societies representing specialist physicians, lobbyists emphasized. But the changing political reality has forced them to adjust their strategies not only in dealing with Congress, but also in responding to their members and clients.

Promoting an issue to an uninterested majority party in Congress while restless clients grow frustrated is a challenge for any lobbyist. One lobbyist for physician interests said doctors must be convinced that the lobby’s work in Washington is only one part of a broader strategy.

Doctors around the country, and their representatives in Washington, still clamor for help with rising malpractice insurance premiums they contend are driven by litigious trial lawyers and profligate juries.

President Bush shares this aim, arguing that high malpractice-insurance premiums are threatening some doctors’ abilities to stay in business, especially among specialty physicians such as obstetrician-gynecologists. “To protect good doctors from junk lawsuits, we need to pass medical-liability reform,” he said last week during his State of the Union address.

The president’s words were met by silence on the Democratic side of the House chamber. A political environment that was less than completely hospitable to tort reform when the Republicans controlled Congress turned practically hostile to the idea when Democrats seized control of the legislature.

Democratic lawmakers tend to side with trial lawyers and public-interest groups that argue the court system is the only institution that can level the playing field between private citizens and moneyed interests. “The most impartial forum for an individual to address a wrong is 12 jurors,” a legislative counsel with Public Citizen, Linda Andros, said. “Why is medical malpractice any different?”

Indeed, Public Citizen and like-minded groups such as the American Association for Justice (formerly known as the Association of Trial Lawyers of America) deny there are widespread problems with the malpractice-insurance or legal systems.

The Republican-controlled House passed legislation year after year that would have established a cap on the amount of money a plaintiff could win in a lawsuit against a physician. That bill specifically called for a $250,000 maximum in so-called non-economic damages, which include “pain and suffering” payouts. The bill would not have limited the amount of money that could be awarded to make up for the costs of medical treatment or lost wages or for punitive damages.

Senate Democrats, with help from a handful of Republican colleagues, stymied the bill, to the consternation of physician lobbyists under pressure from the doctors they represent to secure a legislative victory on one of their top priorities.

The AMA and allied groups, such as the Health Coalition on Liability and Access, pushed hard in support of the Republican malpractice bills again last year. Their strategy included running advertisements in the home districts and states of key lawmakers.

The physician lobbyist said that doctors’ experience with the debate over the federal patients’ bill of rights should inform their perspective on the liability reform effort.

The House and Senate both passed patients’ bills of rights in 2001 but the legislation never made it to conference, largely because of opposition from the White House. Physicians were among the strongest proponents of the legislation, which aimed to place limits on health-insurance policies restricting access to medical treatments.

Although the federal effort failed after years of negotiations, many of the proponents’ aims were met by lawmaking at the state level and by health insurers acting on their own to eliminate some controversial practices.

Likewise, the physician lobbyist said, a growing number of states have stepped in to tackle medical-malpractice insurance issues. The lobbyist credited work at the federal level with helping to spur action by the states.

There may yet be some form of legislative activity on medical-malpractice insurance or malpractice lawsuits this year.

Senate Finance Committee Chairman Max Baucus (D-Mont.) and Senate Health, Education, Labor and Pensions Committee ranking member Mike Enzi (R-Wyo.) plan to reintroduce a bill to establish special medical courts to decide allegations of malpractice, for example. In addition, House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) and Energy and Commerce Committee Chairman John Dingell (D-Mich.) introduced legislation in the 109th Congress that would set some strictures on filing malpractice lawsuits and would establish new limits on the price of malpractice insurance.

In the meantime, the AMA has signaled that it will dedicate more energy this year to items on its agenda that are more in line with the views of the Democratic majority. When the group issued a statement outlining its legislative agenda for 2007, getting more people covered by health insurance and preventing a 10 percent cut in their Medicare payments were highlighted over medical-liability reform.