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Trial Lawyers Sidestep Malpractice Curbs

Senate health reform bill shows how trial lawyers' lobbying helped end drive for damage award caps

By Jonathan D. Salant

(Bloomberg)—U.S. Senate staff members arriving at work by subway this month were greeted by signs proclaiming that "98,000 patients may die" through medical malpractice.

On a single day in October, lawmakers received visits from more than 70 victims of doctors' errors and the attorneys who represented them. And the trial lawyers' political action committee gave members of the Democratic congressional majority more money than all but two other PACs.

Such efforts helped trial lawyers avoid any of the concessions that other groups were forced to make to advance the cause of overhauling health care, despite polls showing strong support for curbs such as award caps on medical-malpractice lawsuits. Even organized labor, also among the Democrats' most loyal supporters, faced a tax on high-end health-care plans.

"Every single other group is being asked to put some skin in the game," said Lisa Rickard, president of the Washington- based U.S. Chamber of Commerce's Institute for Legal Reform, which has run ads supporting award caps. "There's hesitancy within both the administration and the Congress to do anything that's really going to upset the apple cart when it comes to the trial lawyers."

Final Bill

Both the House and Senate have voted to overhaul health care. Negotiators from the two chambers will begin crafting a version next month that can clear Congress and be signed into law by President Barack Obama.

Neither measure caps awards for victims of medical malpractice. The absence of such a provision reflects the clout of trial lawyers, whose PAC contributed $1.1 million this year to Democrats, trailing only the International Union of Operating Engineers and International Brotherhood of Electrical Workers, according to the Center for Responsive Politics, a Washington research group.

Former Democratic National Committee Chairman Howard Dean said at a town-hall meeting in Virginia in August that his party refused to limit awards "because the people who wrote it did not want to take on the trial lawyers."

The public supports limiting awards: An NBC-Wall Street Journal poll in September found 65 percent of respondents backing limits on payments to people injured by malpractice.

James Rohack, the president of the Chicago-based American Medical Association, which has long fought to limit awards, said "medical liability reform has to be looked at" as a way of meeting the health-care overhaul's goal of bringing down costs.

'Proven to Be Effective'

"Caps on noneconomic damages are proven to be effective," he said.

That argument is echoed by congressional Republicans such as Senator John Ensign, a Nevada Republican who tried to amend the legislation to include caps. He said limits on malpractice awards would allow doctors to avoid "defensive medicine," the extra tests they carry out to avoid lawsuits.

An Oct. 9 Congressional Budget Office report found that a $250,000 cap on awards for pain and suffering awards would reduce health costs by $54 billion over 10 years, or 0.5 percent of annual health-care spending.

The trial lawyers, however, argue that there would be no need for damages if there were no mistakes. Based on studies of hospitals in two states, the Institute of Medicine of the National Academy of Sciences estimated in 1999 that from 44,000 to 98,000 people each year die of medical errors.

Subway Ads

The American Association for Justice, the trial lawyers' trade group, spent $100,000 to place ads in a subway station near the U.S. Capitol, and helped organize a day in October for malpractice victims and their lawyers to lobby lawmakers.

"Patients have a lot of influence with the Congress," said Linda Lipsen, an AAJ vice president.

The Center for Justice and Democracy, a New York-based consumer group, brought Kathy Olsen of Chula Vista, California, to tell Senator Barbara Boxer and Representative Bob Fillner, two Democrats from her home state, about her then-2-year-old son, who suffered blindness and cerebral palsy from a brain abscess not discovered because the hospital refused a requested scan. A jury awarded $7.1 million for pain and suffering, though a judge reduced that to the state's $250,000 cap.

"Who would have thought the law wouldn't have protected a 2-year-old who got hurt like this," Olsen said.

Democratic lawmakers also heard from Representative Bruce Braley of Iowa, a former trial lawyer who helped lead the debate against caps. He said Congress shouldn't substitute its judgment for that of voters.

'Same People'

"The same people who elect us are the same people who serve on juries in these cases," Braley said.

Democrats said caps weren't even on the table after Obama said he wouldn't support them. Such limits could be "unfair to people who've been wrongfully harmed," Obama told the AMA in Chicago on June 15.

Obama "said he did not want caps but there were other things you could do," said House Energy and Commerce Committee Chairman Henry Waxman, a California Democrat.

As a possible substitute, both versions of the health-care legislation encourage states to find ways to curb frivolous claims. Among the ideas: Specialized courts for malpractice cases and having doctors apologize and offer compensation before a suit is filed, Rohack said.

"We know caps work," Rohack said. "What we don't know is do these alternatives work."

To contact the reporter on this story: Jonathan D. Salant in Washington at jsalant@bloomberg.net.

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