WASHINGTON – Hoping to gain enough votes for passage, some senators are working on a compromise that would double the limits on jury awards in House-passed medical malpractice legislation.
Senate Majority Leader Bill Frist, R-Tenn. and Sen. Dianne Feinstein, D-Calif. have been working on the deal along with Senate Majority Whip Mitch McConnell, R-Ky., Feinstein's and McConnell's offices confirmed Friday.
Lawmakers want to tackle the malpractice problem to deal with complaints by physicians that frivolous lawsuits are driving up the cost of malpractice insurance and leading them to move to other states or curb their medical practices to stay in business.
The draft of the Senate version would increase to $500,000 the cap on "non-economic" damages, such as compensation for loss of limb or sight. It would still allow awards of at least $2 million in cases of severe disfigurement or death.
The House passed legislation one week ago that would set the non-economic cap at $250,000. It would not limit compensation for loss of wages, medical bills, funeral expenses or other economic damages.
The cap on non-economic damages has been the main point of contention with the bill. Many senators have complained it is unfair to spouses, children or poor people unable to show any loss of wages.
Feinstein said the draft bill is similar to a California law currently in place. "A national version of this bill could help address the malpractice premium crisis, which is threatening access to health care for patients around the nation."
McConnell, however, cautioned that discussions are still underway. "As of yet, we do not have a bill that all parties can agree upon." But, he added, "I am hopeful that we can bring our discussions to a resolution in the very near future."
Indeed, early signs indicated the draft compromise was doing little to pacify Senate Democrats opposed to caps or even supporters of the House bill.
"You can assume Sen. Daschle (the Democratic leader) is going to work real hard to make sure no other Democrats support this," one Senate Democratic aide said Friday.
Dr. Donald Palmisano, the president-elect of the American Medical Association, pointed to studies showing that a $250,000 cap would better ease the liability problem and said, "We want to have a proven performer. It will not solve the medical liability crisis if we get something that is a solution in name only."
The compromise was first reported in Friday's Wall Street Journal.
Neither the House bill nor the Senate draft would pre-empt non-economic caps already law in about half the states.
In addition to the cap on non-economic damages, punitive damages -- those that punish a physician for serious mistakes -- would be limited to twice the amount of economic damages awarded or $250,000, whichever is greater under the House-passed legislation.
The House legislation also would restrict patients' ability to file lawsuits over old cases and set limits on lawyers' fees. It would also affect not just doctors but also hospitals, nursing homes and other health providers. The broadly written House bill would affect state and federal courts.