WASHINGTON – After pouring millions of dollars in political campaign coffers, the nation's trial lawyers may be on the receiving end of a handsome windfall: a patients' bill of rights that will allow Americans to sue HMOs for limitless damages.
Provisions in the Patient Protection Act of 2001, to be debated in the Senate this week, allow patients to sue for up to $5 million in punitive damages and unlimited damages for pain and suffering.
But some experts, interest groups, and critics say that a bill ostensibly designed to help meet the medical needs and interests of America's families carries a huge price tag as the litigation allowed under the bill drives up health care costs.
And critics of the bill, co-sponsored by Sen. John McCain, R-Ariz., Sen. Edward Kennedy, D-Mass., and Sen. John Edwards, D-N.C., say that it is trial lawyers, and not patients, that stand to benefit.
"This bill, if it will not create a gold rush for the legal profession, it will create the next best thing," complained Neil Trautwein, a spokesman for the politically potent National Association of Manufacturers who decries the influence of the trail attorneys on this bill.
Sen. Kennedy and Sen. Edwards received almost $1 million from trial lawyers between the two of them over the last five years, according to a service by the American Tort Reform Foundation that tracks individual contributions from trial lawyers. And the Association of Trial Lawyers of America gave almost $1 million to the two parties in the 2000 election cycle, $966,400 to Democrats and $3,850 to Republicans.
Alternative to '1-800-LAWSUIT'
"The trial lawyers wrote the Kennedy-McCain bill," charged Margaret Camp, a spokesman for Sen. Bill Frist, R-Tenn. who has co-sponsored another patients' protection measure that President Bush says he'll sign.
The Frist bill allows patients to sue, but not for punitive damages and with a $500,000 cap on pain and suffering.
Camp said that both bills include the same protections for patients in regards to emergency room treatment, going to specialists, access to clinical trials and stopping "gag orders" on doctors.
"Both sides have agreed to the patient protections — it's the trial lawyers who won't give in," she said.
So the Senate is now considering two competing bills, "one that doesn't drive up litigation and health care costs and another that encourages … 1-800-LAWSUITS," quipped Walter Olson, author of The Excuse Factory and senior fellow at the Manhattan Institute.
Olson said the McCain-Kennedy-Edwards bill will send the cost of health care soaring. "The effect is it will have to be paid for by somebody — mostly the workers of America," he said.
As HMOs and other medical providers face an increased threat of lawsuits, critics say, insurance premiums will rise and health care providers will be forced to deny coverage for some patients.
McCain Stands Firm
Nancy Ives, a spokesman for Sen. McCain's office, said the criticism of the bill was off base and that the increase in health care costs will be "marginal." The bill's supporters point to similar patient protection bills in the states and say they haven't had the adverse effects its critics claim are just around the corner.
When asked if Sen. McCain, who has decried the influence of special-interest money in politics, was concerned that trial lawyers had paid large sums to the bill's co-sponsors, she dismissed the notion as "a good example of political rhetoric."
And she pointed to the considerable support the bill enjoys from hundreds of doctors, nurses and other health care groups and "patients across this country that so desperately need a say in what happens in this country."
She also said that patients will have to go through an "exhaustive" appeals process before going to court. "We want to make it a last resort and not the first resort," she added.
The debate over the McCain-Kennedy-Edwards bill is expected to begin Tuesday in the Senate; the House already passed similar patients' rights measures in previous sessions. The majority of state legislatures have passed their own regulations governing the health care industry, with ten states allowing lawsuits on behalf of patients.