Senate Democrats Introduce Alternative Medical Liability Legislation

Senate Democrats and Sen. Lindsey Graham (R-S.C.) yesterday introduced a medical malpractice bill that would assist providers with their malpractice premiums and remove the insurance industry's antitrust exemption, the New York Times reports. Introducing the bill allowed Democrats to avoid an "uncomfortable vote" against a Republican-backed bill that would cap noneconomic damages in malpractice lawsuits at $250,000 (Stolberg, New York Times, 7/9). The House earlier this year passed a bill (HR 5) similar to the Senate Republican legislation. The House bill, sponsored by Rep. Jim Greenwood (R-Pa.), would cap noneconomic damages in malpractice lawsuits at $250,000 and would allow punitive damages of $250,000 or twice the amount of economic damages, whichever is higher. The legislation covers lawsuits filed against physicians, HMOs, pharmaceutical companies and medical device companies. The bill also would allow state governments to increase or decrease the cap; the legislation would not cap economic damages, which include medical costs and lost wages (California Healthline, 7/8). Senate Republicans predicted that their bill would not likely pass because they do not have the votes required to end a Democratic filibuster (New York Times, 7/9). Several Senate Democrats said that at least 45 of the 49 Democrats in the Senate oppose the Republican bill; the bill "appears unlikely to survive" a procedural vote scheduled for today that would require 60 votes to "keep consideration of the bill alive," the Wall Street Journal reports (Wysocki, Wall Street Journal, 7/9).

The bill, sponsored by Graham and Sen. Richard Durbin (D-Ill.), would not cap noneconomic damages in malpractice lawsuits but would provide tax credits for physicians and hospitals to help cover the cost of malpractice insurance. The bill also would repeal malpractice antitrust exemptions for the insurance industry, provide $10 million in grants to help local governments attract doctors in areas with high malpractice insurance premium rates and establish a system to penalize attorneys who file frivolous malpractice lawsuits (Espo, AP/Newport News Daily Press, 7/8). In addition, the bill would establish a commission to study increased malpractice insurance costs (New York Times, 7/9).

Durbin said, "Caps don't bring malpractice rates down" (AP/Newport News Daily Press, 7/8). Graham said that the bill "strikes the right balance for all parties with a dog in this fight." He called the Senate GOP bill a "political document" that Republicans introduced to "score political points," the Times reports. "I am going to fight this bill because the consequences to everyday Americans would be devastating," Graham said. However, Sen. Rick Santorum (R-Pa.) said that Senate Democrats were "putting politics in front of people" with their refusal to allow the GOP bill to reach the floor for a vote. He added, "To the extent that we're playing politics, it's the politics of letting people back home know where their senator is when it comes to solving this problem" (New York Times, 7/9). Sen. John Ensign (R-Nev.) added that the Senate Republican bill would place the "interests of patients ahead of all others by bringing stability to the system and ensuring patients access to doctors" (MacDonald, Hartford Courant, 7/9).