Senate fails on tort reform

The Senate must reconsider legislation to end the ongoing medical liability crisis.

Editorial. Aug. 11, 2003.

The Senate let down not just physicians but also the American people last month when it again failed to pass meaningful medical liability reform.

The nation is in the midst of a liability insurance disaster. Only six states enjoy a stable liability climate. The problem has reached crisis proportions in 19 states -- home to more than 140 million people, AMA research has found.

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Topic: Liability crisis

With insurance priced out of reach, many physicians are retiring early, dropping risky procedures or moving to states with better insurance climates. Who are the ultimate losers? Patients.

When a rural obstetrician-gynecologist's premiums get so high that he must stop delivering babies, it's the woman in labor who suffers because she's forced to drive miles upon miles to a new doctor.

When a neurologist pulls up stakes to move to a state where she can afford liability insurance, it's the patient injured in a car wreck who suffers.

The problem is felt in less obvious ways, too. In defensive medicine, which subjects patients to needless tests and procedures and costs the nation billions. In a mentality that emphasizes fear and punishment instead of prevention of medical errors. In a poisonous atmosphere that discourages medical innovation.

Fortunately, the debate no longer is about whether a crisis exists, but how it should be solved.

The House earlier this year embraced the right solution -- a bill based on California's tort reform model. The law has been working there for 27 years. Liability premiums in the state have increased 182% during that time, compared with a sobering national average of 570%.

California's system blends protection of patients' rights with sensible reforms that have prevented a lawsuit lottery in the state. Like California's law, the House bill would allow compensation for lost wages and medical costs, cap noneconomic damages at $250,000, limit punitive damages and restrict attorney fees.

The holdup for the past several years has been the Senate, where many Democrats oppose liability caps.

In this most recent vote, a narrow majority of senators, all Republicans, cast their votes the right way -- in favor of a bill, sponsored by Sen. John Ensign (R, Nev.), that includes the same sensible reforms as the House legislation. But that was not enough to preempt a filibuster.

Opponents of the Ensign bill have now offered an alternative proposal. It relies largely on eliminating antitrust exemptions on liability insurers, providing tax credits for some physicians and hospitals, and banning partial punitive damages for physicians with large public health program caseloads.

This bill falls far short. The legislation does not include the reforms proven to rein in out-of-control liability rates.

The fight is not yet over, though. Senate leaders have said they might bring up medical liability reform again in this session of Congress. Physicians have powerful allies in President Bush and Senate Majority Leader Bill Frist, MD (R, Tenn.), and Sen. Mitch McConnell (R, Ky.).

Doctors also have patients in their corner. A recent poll shows that most Americans -- 72% -- support limiting noneconomic damages.

It is not too late for physicians to influence the fate of medical liability reform. The AMA will continue its all-out campaign to push the Senate to follow in the House's footsteps. Individual doctors can get involved, too, by calling the AMA's Grassroots Hotline at 800-833-6354 or visiting the Washington Grassroots Action Center at (www.ama-assn.org/go/grassroots).

Senators must hear from physicians that the House bill and the Republican Senate measure are the cure for what ails the liability market.

Physicians also can enlist their patients' help. The AMA offers tools doctors can use, including physician action kits, which can be ordered at the grassroots Web site. Patients can learn about the liability crisis and send letters to their lawmakers by visiting the AMA's Patients' Action Network Web site (www.patientsactionnetwork.org).

The solution to the liability crisis is clear. Now it's up to the Senate to act in patients' best interests by passing these meaningful reforms.