AMA's stance on tort reform: a cap, not capitulation

AMA Leader Commentary. By William G. Plested III, MD, Nov. 3, 2003.

AMA LEADER COMMENTARY

A few words about current events in medical practice

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A message to all physicians from William G. Plested III, MD, chair of the AMA Board of Trustees.

The medical liability problem continues to fester throughout the country with no end in sight. But there was some good news with the stunning victory in Texas. On Sept. 13, Texans passed Proposition 12, which amended the Texas constitution to grant the Legislature authority to set caps on noneconomic damages in health care cases.

This followed passage of House bill 4, which was signed into law by Gov. Rick Perry. The centerpiece of that legislation is a $250,000 cap on noneconomic damages for all doctors per case.

In California, the passage of the Medical Injury Compensation Reform Act (MICRA) was followed by 10 years of constitutional challenges by the trial lawyers. Proposition 12 lets Texas physicians and patients enjoy the benefits of real liability reform without enduring years of court challenges. I am proud to add that the AMA contributed much in the way of time and resources as a partner of the Texas Medical Assn. in their effort.

Unfortunately, in almost all other states, the situation continues to deteriorate. The AMA considers 19 states to be in crisis. In these states, the problems have escalated to the point that access to medical care is adversely affected. Physicians throughout the country are keeping up the pressure on legislators, and AMA officers, trustees and staff are providing as much assistance as possible. We are giving an all-out effort to finding a solution -- or solutions.

Federal legislation continues to be the AMA's top legislative priority. The HEALTH Act, or Help Efficient, Accessible, Low cost, Timely Health Care Act (HR 5), which passed by the House of Representatives last March, fulfills the direction of the AMA House of Delegates to seek a federal MICRA-style bill. The bad news is that the U.S. Senate remains a stumbling block. The Patients First Act (S 11), companion bill to HR 5, has been stalled by opponents of reform.

It would seem that the Senate is so consumed by partisan acrimony that very little can be accomplished. It is sad, and even tragic, that this clear and present danger to the health of our citizens -- our patients -- has become subject to such bitter partisanship.

By an overwhelming majority in all polls, the American people want a federal MICRA. Add to this the support of the president, the secretary of Health and Human Services, the House of Representatives and probably more than half of the Senate, and one would think that passage of this sorely needed legislation would be counted among the accomplishments of the 108th Congress.

But the procedural rules of the Senate allow a minority to prevent action on a bill. Unfortunately, S 11 has fallen prey to abuses in this system. As Americans, we expect an open debate followed by an open accounting of the will of the majority. Yet patients continue to suffer from loss of access and higher costs because of these parliamentary delaying tactics.

The gridlock produced by the legislative shenanigans of a minority of senators has caused so much pain for so many physicians and patients that many doctors have begun to blame anyone in sight for the lack of a solution. It is curious that the AMA -- which has battled medical liability abuses since Day 1 and which carries our present battles -- is blamed by some for the Senate's inaction.

To me, this criticism is a measure of the frustration and suffering of too many of our colleagues.

Some complaints I hear focus on the cap amount for noneconomic damages and the possibility of providing legislative relief only for physician members of one specialty or another. Some call them "carve-outs."

The AMA House of Delegates has specified that we seek legislation to provide a $250,000 cap -- as in MICRA -- or a proven alternative. The "proven" element is crucial. We must have actuarial proof that any action we seek will provide the liability premium relief so desperately needed.

The trial lawyers try to increase their potential earnings by suggesting higher caps, or any number of other wild provisions, such as those that don't apply a cap to so-called "catastrophic exceptions" or "serious bad outcomes." Somehow, I can't imagine a trial lawyer prefacing his remarks to a court with the disclaimer that his client's professed damages aren't really serious!

The AMA is always prepared to negotiate serious reform proposals, but to accept a meaningless bill would be a tragic mistake. The AMA is willing to support specialty-specific bills if they contain provisions equal to or even better than MICRA, and if they do not forfeit court victories on the ERISA preemption issue.

Some contend that we should capitulate on each or both of these issues, just to get a legislative "win." But passing poor legislation is actually the worst kind of loss. Nothing substantive is accomplished, and what's more, lawmakers get the misguided notion that they have actually done something. To me, this is the worst possible result.

Finally, I want to again assure all physicians that we will win this battle. It may not be as soon or as easily as we would like -- but we will win. Our job is to stay the course in our demands for proven reforms. At a time when there is a clamor for evidence-based medicine, evidenced-based legislation would be an extremely appropriate response.

Dr. Plested, a thoracic and cardiovascular surgeon from Brentwood, Calif., was chair of the AMA Board of Trustees during 2003-04 and served as AMA president during 2006-07.