ASHINGTON,
Dec. 19 - Republicans, who favor limits on medical malpractice lawsuits,
have stories about towns in
Ohio with no obstetricians to deliver babies and places in southern
Illinois with no neurosurgeons - the doctors having taken down their
shingles because of the high cost of malpractice insurance.
Democrats, who oppose restrictions on lawsuits, have their own tales:
about the surgeon in
Wisconsin who performed an unnecessary double mastectomy on a woman, for
instance, or the 2-year-old boy in
Nebraska who died from dehydration because of a hospital's neglect.
With legislation on Social Security and taxes still in the early
stages of development, malpractice is likely to be one of the first of
President Bush's campaign issues that Congress takes up in the new year.
"We've done it before, and it's a pretty well-worn path," said
John P. Feehery, the spokesman for Speaker J. Dennis Hastert.
Seven times since Republicans gained control of Congress in 1995, the
House has passed legislation to curb medical malpractice claims. Each
time the measure has been blocked in the Senate, falling well short of
the 60 votes needed to bring the matter to a vote.
With their larger majority in the Senate after last month's
elections, Republican leaders say they expect to prevail next year.
"This is a majority priority," Senator Bill Frist of
Tennessee, the majority leader, said in an interview. "I am
convinced that over this Congress, we will have a meaningful federal
solution."
Democrats say they still have the votes to stop the legislation.
"With the new configuration, I'm not going to assume
anything," said Senator Richard J. Durbin of Illinois, a staunch
opponent of limits on malpractice suits who will be the assistant
Democratic leader in the new Congress. But Mr. Durbin observed that
proponents of such limits had only 48 and 49 votes the two times the
matter was before the Senate this year and added, "It seems to me
the shift shouldn't change the outcome."
In the Senate this year, only one Democrat, Zell Miller of
Georgia, favored limits on lawsuits, and he did not run for re-election.
Three Republicans opposed limits: Michael D. Crapo of
Idaho, Lindsey Graham of
South Carolina and Richard C. Shelby of
Alabama, who were courtroom lawyers before they entered politics.
Republicans picked up four seats in last month's election. But one of
the four, Mel Martinez of
Florida, was a leading trial lawyer in
Orlando who helped defeat a measure before the Florida Legislature in
1988 that would have put a cap on malpractice damage awards.
The last time the House voted on the issue was in March 2003. By a
vote of 229 to 196, it passed a bill that would have put a $250,000
ceiling on jury awards for pain and suffering caused by medical
malpractice, limited punitive damages and restricted the contingency
fees plaintiffs' lawyers could charge.
Dr. Frist said the political calculus would change this year because
of Mr. Bush's commitment and strong public support for restricting
malpractice awards.
In his re-election campaign, Mr. Bush emphasized curbs on medical
liability.
In his third debate with Senator John Kerry, for example, Mr. Bush
asserted that malpractice lawsuits and "the defensive practice of
medicine" by wary doctors and hospitals cost the government $28
billion a year and "our society between $60 billion and $100
billion a year."
Independent analyses suggest that the president's cost estimates were
exaggerated.
The nonpartisan Congressional Budget Office reported in January that
malpractice costs were less than 2 percent of overall health care
spending and that even a 30 percent reduction in malpractice costs would
lower health care spending by less than 0.5 percent.
Few other policy issues are so driven by anecdote, hyperbole and
campaign donations.
Dr. Donald J. Palmisano, whose term as president of the American
Medical Association ended in June, said in an interview that "as
much as 50 or 60 percent" of the cost of malpractice insurance
could be attributed to unjustified awards to plaintiffs for "noneconomic
damages," which usually means pain and suffering.
The medical association gave more than $2 million to candidates in
this year's elections, mostly to Republicans running for the House and
Senate and organizations supporting them. Other associations
representing doctors, dentists and hospitals gave millions more.
Todd A. Smith, president of the Association of Trial Lawyers of
America, said that the high insurance cost had "nothing to do with
noneconomic damages" and "everything to do" with greedy
insurance companies.
The trial lawyers' association donated $2.5 million to this year's
candidates, almost all of it to Democratic candidates and their
supporting organizations. Lawyers and law firms gave millions more.
The actual size of malpractice awards is impossible to calculate,
since so many suits are settled before they reach trial. The
Congressional Budget Office reports that 15 claims are filed for every
100 doctors each year and that about a third of the claims result in an
insurance payment.
Public opinion is clearly on the side of curbing malpractice damages.
A Gallup poll last year found that about three-quarters of those
surveyed supported "a limit on the amount patients can be awarded
for their emotional pain and suffering."
The National Conference of State Legislatures says that 34 states
have enacted such caps. The experience in those states suggests that
limits on awards do result in lower insurance costs.
For example, according to Medical Liability Monitor, a newsletter
that tracks malpractice issues, obstetrician-gynecologists in
California, which has had limits on malpractice claims since 1975, pay
no more than $90,000 a year for malpractice insurance, while those in
Illinois, which has no restrictions, pay as much as $230,000.
But the newsletter's data suggest that legal limits are not a
cure-all. In
Minnesota, for instance, which has no such limits, the annual
malpractice premium for a general surgeon can be as low as $11,000. But
in
Michigan, which has limits, general surgeons pay more than $190,000.
The Congressional Budget Office concluded that a measure like the one
the House passed last year would lower insurance premiums nationwide by
25 percent to 30 percent.
But the budget office questioned whether this would actually solve
the problem of doctors abandoning certain communities. It cited a study
by another nonpartisan agency, the Government Accountability Office,
which found some places where people's access to emergency surgery and
obstetrics had indeed become limited because doctors had left. But it
then went on to say that many reported doctor shortages could not be
substantiated or did not result primarily from the cost of malpractice
insurance.