Saturday, October 09, 2004

Medical Malpractice "Reform" and the Bush/Kerry Debate

During last night's presidential debate, President Bush attacked Senator Kerry's bona fides on tort "reform," noting that Kerry missed Senate votes on proposed federal legislation that would have capped malpractice awards. From what we can tell, Bush must have been referring to S. 11 (the "Patients First Act of 2003") and/or S. 2061 (the "Healthy Mothers and Healthy Babies Access to Care Act of 2003"). The press is not likely to discuss the actual content of those bills in any detail, but it's worth mentioning that both bills embodied an aggressively conservative legal agenda going far beyond mere caps on punitive damages.

The "Patients First Act"

S. 11 was introduced on June 26, 2003, by Sen. John E. Ensign (R-NV), with thirteen Republican co-sponsors and no Democratic ones. A cloture motion failed on July 9, 2003, on a party-line vote. The bill would have created a federalized law of tort for malpractice claims, imposing the following restrictions on the states:
  • for claims by adults, a 1-year statute of limitations, and a 3-year statute of repose except in cases of fraud;
  • for claims by children, a 3-year statute of limitations, with no tolling pending majority, except that injured children under age 5 would have until their 8th birthday to sue;
  • a $250k cap on lifetime compensatory damages for pain and suffering;
  • crippling limits on contingent fees (not to exceed 25% after the first $100k in damages or 15% of any award exceeding $600k, with additional judicial discretion to reduce contingent fees "based upon the interests of justice and principles of equity");
  • effective abolition of the collateral source rule;
  • a bar against subrogation claims;
  • abolition of joint and several liability; and
  • highly restrictive competency rules for experts testifying on the standard of care. (See our post of 3/14/04.)

In short, S. 11 involved far more than curbing punitive damage awards. The bill was designed to create major economic and procedural impediments to access to the courts by deserving malpractice claimants, to slash the compensatory damage awards of claimants who did manage to surmount those impediments, and to federalize an entire area of substantive tort law that has long been the province of the states. If the bill failed to win any semblance of bipartisan support, we think it's because pro-insurer legislators got greedy and decided to go for broke.

The "Healthy Mothers and Healthy Babies Access to Care Act"

S. 2061 was introduced on February 10, 2004, by Sen. Judd Gregg (R-NH), again with thirteen Republican co-sponsors and no Democratic ones. A cloture vote failed, along party lines, on February 24, 2004. It largely parroted S. 11's provisions in the narrower context of malpractice suits against OB/GYN providers. In addition, it would have created broad new federal limits on damage claims arising from the defective design, manufacture, packaging, or labeling of FDA-approved drugs and medical devices -- protections that would have extended not only to health care providers, but also to drug manufacturers.


Anonymous writes ...

Whatever the merits of the various provisions of S.11 (which the AMA supported), the President was hardly being unfair in his characterization; after all, Kerry does, for better or worse, oppose the caps that were at the centerpiece of the bill and the discussion in the debate. -- Ted Frank

11:36 AM  
pn writes ...

Well, among the things Bush said was: "First, he says he's for medical liability reform, particularly for OB/GYNs. There's a bill on the floor of the United States Senate that he could have showed up and voted for if he's so much for it."

I must leave it to others to evaluate whether the Bush campaign's overall characterization of Kerry's positions and record might be called "fair." I know only that when an issue is made of a candidate's voting record, it can be helpful to have information about the actual content of the bills at issue.

1:54 PM  
Anonymous writes ...

some research has shown that the California initiatives at malpractice reform were only effective when voters mandated insurance industry reform, and that caps on damage awards had little effect on malpractice insurance rates. So it seems that the S.11 bill was barking up the wrong tree.

3:17 PM  

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