Trial Lawyers Sidestep Malpractice Curbs

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

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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.