Ensign’s bill fails; issue may be revived

David Espo

Wednesday, July 9, 2003 | 11:16 a.m.

WASHINGTON -- Senate Democrats won their fight today to bottle up legislation limiting damage awards in medical malpractice cases, all but dooming a measure sponsored by Sen. John Ensign, R-Nev., that President Bush made a priority.

The vote was 49-48, 11 short of the 60 needed to overcome the Democratic-led filibuster. Sen. Harry Reid, D-Nev., voted against the bill.

GOP aides said in advance that Majority Leader Bill Frist, R-Tenn., was prepared to pull the bill from the floor if it failed the test vote, but said the issue would return, either in Congress or the 2004 elections.

After the vote Ensign said he was disappointed, but still pleased to have had 49 senators vote to proceed. He said it was difficult to predict whether GOP leaders would push for another vote this year.

"Before the next election? I don't know," Ensign said. "It will be tough."

Ensign said the vote accomplished one goal -- putting pressure on senators who voted against holding a vote on the issue. "It puts them on record," Ensign said.

Ensign said pressure will continue to mount on senators as more states face doctor shortages. Last year 12 states were in crisis with high malpractice rates and doctors fleeing, he said. This year it's 19, with 25 more on the verge, he said.

"This problem is not going away," Ensign said. "It's going to continue to worsen."

Ensign on Tuesday and again today argued on the Senate floor that lawmakers should proceed with a limited debate, then promptly vote on the issue. Ensign invoked Nevada as an example of the 19 states he said were hit hard by the crisis.

"This is a national priority and we must act now," Ensign said.

Democrats had argued that Ensign's bill would not likely lower malpractice insurance rates, and several said Congress should not dictate tort reform to states. Democrats, including Reid, a lawyer, also argued that the insurance industry was more to blame than lawyers. Reid voted against the motion to proceed to a vote.

But Ensign blamed "out-of-control" jury awards for driving up malpractice insurance rates.

"We have a jury system that is out of balance," Ensign said. "The system is set up to encourage frivolous lawsuits."

The legislation proposed limiting non-economic damages, commonly known as pain and suffering, to $250,000. Punitive damages would be capped at the greater of $250,000 or twice the amount of economic damages, which cover medical expenses, loss of wages, funeral expenses and similar costs. States would be permitted to enact higher limits.

Additionally, the measure called for limiting the amount of money attorneys could pocket if they work on a case on a contingency fee.

From the start, the bill seemed unlikely to advance far.

Frist brought it to the floor without any committee hearings or debate -- the type of tactic that Republicans sharply criticized when Democrats employed it in the 18 months they recently held the majority.

At its core, the bill marked a clash of special interests. The American Medical Association, American Insurers Association and the American Hospital Association, all of which donate millions to Republican causes, supported the measure.

Additionally, some Republican aides, speaking on condition of anonymity, said the party was hoping that advancing the legislation in Congress would repair relations with the AMA, frayed during a prolonged debate over patients rights legislation.

The Association of Trial Lawyers of America, which gives to Democrats, worked to defeat the measure.

The House passed similar legislation earlier this year, on a largely party-line vote.

McConnell and other Republicans relied repeatedly on AMA material during debate on the measure, using a map of the United States to identify states that the doctors' organization said were at or near a malpractice crisis.

"This is now truly about patients having access to quality health care," Ensign said.

Democrats didn't dispute the need for legislation, but rejected the Republican claim that a cap would curb malpractice rates.

Additionally, Senate Democratic Leader Tom Daschle told reporters that the proposed cap would apply more broadly than to doctors.

"Under that cap would also go HMOs, medical device manufacturers, hospitals, you name it, drug companies ... This is more than just a doctor protection. This is a protection for anybody involved in health care delivery."

Durbin and Lindsey Graham, R-S.C., backed an alternative that included a voluntary reporting system for medical errors and tax credits to defray the rising cost of malpractice insurance for some doctors. But under the Senate's rules, Democrats had to allow the GOP measure past the 60-vote hurdle before the rival plan could be considered.