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Washington-Senate Republican leaders hope to introduce two new versions of medical malpractice liability legislation next week for floor action the following week. But chances of final approval remain weak, agree groups on both sides of the controversial issue. The first week in May is “Health Week” in the Senate, and Majority Leader Bill Frist, R-Tenn., has said he will bring the medical malpractice bills to the floor that week along with other health-related measures. The two bills, S. 22 and S. 23, are not yet in final form, but sources close to the drafting say S. 22-likely to be sponsored by Senator John Ensign, R-Nev.-will be a comprehensive approach modeled on Texas’ medical malpractice insurance law. Bill S. 23, likely to be sponsored by senators Judd Gregg, R-N.H., and Rick Santorum, R-Pa., will be an obstetrician-only malpractice measure. The main bill is expected to limit noneconomic damages to $250,000 for individual health care providers, a $250,000 cap on judgments against a health care institution and a $500,000 cap for more than one institution. The total cap for noneconomic damages would be $750,000. The bill also is expected to include a “states’ rights” provision to preserve state medical liability laws already in place and to allow future state laws to supersede federal limits on damages. The model Texas law was enacted in 2003 as was a constitutional amendment ensuring its survival against a constitutional attack. “For years, California’s law was a model, but now with Texas having 2 1/2 years of experience, we see real progress being made in Texas in terms of changing the climate,” said Christian Shalgian, chairman of the Health Coalition on Liability and Access, which represents physicians, hospitals and insurers. He said that more insurance companies are writing medical practice insurance, premiums have gone down and doctors are coming back to Texas. But opponents of federal legislation on this issue disagree with the Texas assessment and say little has changed in the proposals offered in the Senate in recent years. What has changed, they contend, is that malpractice insurance rates have stabilized nationally. “A soft market has taken hold,” said Joanne Doroshow, executive director of the Center for Justice & Democracy, a consumer advocacy group. “Rates for doctors haven’t gone up much at all, an average of about 3%. We think this is an entirely political effort,” Doroshow said. “So far there’s been no real deviation in these bills. They are extremely broad and have in the past included nursing homes and drug companies. There’s no indication anyone’s position in the Senate has changed.” Gregg has tried unsuccessfully in the past to win approval of legislation applying only to obstetricians and gynecologists. His previous proposals generally capped noneconomic and punitive damages at $250,000, set new statutes of limitations on filing claims, established qualifications for expert witnesses, and restricted the payment of attorney contingency fees. The House has passed medical liability legislation several times; the Senate has yet to do so. The Bush administration has been pushing Congress to enact medical malpractice insurance legislation. Shalgian noted that the Senate did not consider medical malpractice legislation last year. “We have to find a way to break through the logjam here,” he said. “I’d like to think Democrats would allow debate to continue on this issue, where amendments could be offered and we could have a genuine debate on each one’s merits.”

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