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A bill passed by a Republican-controlled House and sought by a Republican president would normally have a pretty good chance of getting through a Republican-controlled Senate. But little has been normal this year regarding medical malpractice legislation. Early in the year, the outlook seemed good for federal action. Public concern with physician walkouts and President Bush’s calls for legislation buoyed proponents’ hopes. The House last month voted to limit noneconomic and punitive damages. But the Jesica Santillan organ-transplant tragedy, the withdrawal of Sen. Dianne Feinstein, D-Calif., from negotiations over a compromise and the Iraq war have slowed the momentum. Senate leaders have postponed action until May. The reasons: an inability to forge an essential bipartisan proposal and the press of war and budget issues. “I think medical malpractice reform is in trouble right now,” said Pamela Gilbert of the Center for Democracy and Justice, an opponent of malpractice legislation. “I would never say it’s a dead bill. We have a leadership in the House, Senate and White House that wants it, and that is something which has never been the case in my 20-year career.” What has slowed action is “the reality of getting a consensus behind a particular approach that could break a Senate filibuster,” said Kate Sullivan, director of health care policy for the U.S. Chamber of Commerce, a legislative proponent. “I don’t think we will ever know how close we are until there’s a vote cast,” she said. The key outside players in the fight over legislation to address medical malpractice insurance rates are the trial bar and consumers groups; they are opposed by the American Medical Association, health care providers, drug and medical-device makers and the Chamber of Commerce. But they agree on one thing: The Senate is stalled on the issue. “The level of a cap on noneconomic damages is really the big issue,” said Christian Shalgian, chairman of the Health Coalition on Liability and Access, an organization of physician, hospital and health plan groups. “We want to make sure the Senate understands a cap is critical in passing medical liability reform. … The goal is to stabilize and reduce premiums so patients can get the access they need.” Mike Hotra, director of legislation and communications for the American Tort Reform Association, said the sticking points are the cap, which has skeptics in both parties, and the question of whether a bill should cover just doctors or other defendants often named in suits. Republican Sens. Lindsey Graham of South Carolina, Richard Shelby of Alabama, Arlen Specter of Pennsylvania, Orrin Hatch of Utah and Jeff Sessions of Alabama have questioned elements of a cap. One issue: Should a limit have exceptions for grievous cases like Santillan’s? The very idea of a cap bothers defense as well as plaintiffs’ lawyers in the Senate, said Jackson Williams, legislative counsel to Public Citizen. “Hatch is a former defense lawyer,” he said. “The lawyers in the Republican Party don’t care for it, and that’s the biggest problem Frist has,” a reference to Senate Majority Leader Bill Frist of Tennessee. The House-passed bill, H.R. 5, would cap noneconomic damages such as pain and suffering at $250,000 and punitives at $250,000 or twice the economic damages, whichever is greater. It would limit the time in which a plaintiff can sue and allocate damages based on each party’s proportion of fault. It would allow states to set their own caps, whether higher or lower. A second bill in the Senate, S. 607, by John Ensign, R-Nev., would pre-empt state caps. Both bills would cover hospitals, nursing homes, medical-device makers, drug makers and other nondoctor providers. Feinstein, a California Democrat married to a neurosurgeon, has supported legislation modeled on California law. She has not supported the House bill because it would protect nondoctors. Until two weeks ago, she was working with Republicans on a bill to cap noneconomic damages except in cases of severe disfigurement, severe disability or death. “Public concern with legislation is the flat, one-size-fits-all $250,000 cap on damages,” Gilbert said. “Most observers agree that proposal cannot pass the Senate.” Feinstein sought a compromise cap of $500,000 with catastrophic exceptions. She withdrew her support after the California Medical Association and other medical groups refused to support it. The AMA supports a $250,000 cap on noneconomic damages because it has proven effective in states like California, said its president, Donald Palmisano. He said his organization is willing to study any Senate proposals. Shalgian of the Health Coalition said actuarial studies show that $250,000 is the appropriate cap. A $500,000 cap with an exception for up to $2 million, he said, presents “some issues that we need to discuss.” Some states, he said, have passed caps with exceptions and the exceptions have become the rule. PROTECTING NONDOCTORS “Tort reformers” also don’t want to deny protection to nondoctors. “You have to look at health systems,” said the U.S. Chamber of Commerce’s Sullivan. “Doctors are one thing, but these systems are essential providers as well. “We can’t afford to have nursing homes go bare. Health plan sponsors, if they’re not protected, people are going to go to the deepest pockets.” Lobbyists on both sides say doctors must compromise if a Senate bill is to pass. “Lobbying is about making choices,” said one. “If you go to the U.S. Congress and negotiate in absolutes, you’ve got no business being up there.”

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