Even with a loss of four seats in the Senate, Democrats still can muster enough votes to filibuster GOP proposals to limit damages to $250,000. Legislation has passed the House but not the Senate. Physicians, backed by Republicans, support caps as a way to reduce malpractice premiums; trial lawyers, backed by Democrats, do not and contend they would financially cripple people severely injured by medical errors.
Also, while the president Thursday vowed to make malpractice reform a part of his second term, the crisis mode for malpractice just might be waning, and it could fail to be the hot-button issue it was in the past couple of years.
"The crisis is starting to flatten," Rogan Kersh, professor of political science at Syracuse University in New York, told UPI's HealthBiz. "(Malpractice insurance) premium hikes in 2004 began to flatten out."
Bush increased the importance of malpractice in his campaign just two days after Democrat John Kerry picked Sen. John Edwards, D-N.C., an attorney who has made millions on malpractice cases, to be his running mate, Kersh noted.
Premium increases from 2002-2003 ranged from 50 percent to 100 percent in some specialty areas, such as obstetrics and orthopedic surgery, said Meredith Mello, an assistant professor of health policy and law at Harvard University.
For example, in Dade County, Fla., premiums of $124,000 in 2002 rose to $249,000 in 2003, while in Illinois they went from $58,000 to $147,000.
Most states have some type of cap on non-economic damages anyway, and studies show they have a limited impact, Mello said last week at the Harvard Conference on the Future of American Healthcare in Boston.
Caps can reduce damage recoveries by one-third to one-quarter, she said, but noted 55 cents -- to up to 60 cents -- of every dollar recovered tends to go to someone besides the plaintiff or injured party. Caps, she added, can reduce the growth of liability-insurance premiums but not the premiums themselves.
"They are not the cure-all they are proclaimed to be," Mello said.
Laurie Rubiner, director of the New America Foundation's Universal Health Insurance Program, agreed that while GOP gains give malpractice reform some new legs, "It's a hugely overstated problem in terms of how much it actually contributes to cost -- but Republicans have done a good job in stoking that perception."
More of a systemic reform might be better overall for attorneys, healthcare providers and patients, but Rubiner told HealthBiz caps are the easiest thing for the public to understand -- creating the danger the issue is oversimplified.
"It's much harder to talk about the intricate underlying causes," she said.
Mello said the problem is a poor fit between negligence and claims -- that the system does not set forth the correct standards and structure to allow physicians to predict their own liability nor patients to predict how their claims will fare in court.
She proposed changing that by shifting liability in malpractice cases. For example, rather than going after individual physicians in malpractice claims, have physicians covered by insurance through their hospitals.
Taking the concept for systemic change back to the political arena, Democrats, though weakened in the Senate where the malpractice bills have been stymied, still can have an effect.
Will Marshall, president of the Democrats' Progressive Policy Institute, told HealthBiz: "Here Democrats can come up with better ideas ... (such as) getting into health courts modeled on employment compensation boards."
Marshall said the goal is to find moderate-minded Republicans to work with on issues such as healthcare. "We don't have to fight in endless battles," he said.
MALPRACTICE STATE BALLOT ISSUES
A number of states Tuesday had malpractice proposals on the election ballot. Some did better than others.
Florida voters passed an amendment to the state constitution to allow plaintiffs in malpractice cases to keep 70 percent of the first $250,000 in damages and 90 percent of any damages over that amount. Trial lawyers opposed the measure, and critics worry it will make it more difficult for people to hire malpractice attorneys.
Also in Florida, voters amended the constitution so physicians who lose three medical malpractice cases can have their licenses revoked. Supporters say this will lead to more settlements. However, all of these issues by Thursday were challenged or were expected to be challenged in Florida courts.
In Nevada, voters passed a measure to remove any exceptions to a non-economic-damage cap of $350,000 passed last year and to limit attorneys' fees.
Nevada voters also defeated two ballot issues, one to reduce malpractice insurance premium rates and get rid of the cap on non-economic damages if rates do not drop, and another to reduce frivolous malpractice suits.
Oregon voters narrowly defeated Measure 35, which provided a cap of $500,000 on non-economic damages in malpractice cases and limited attorneys' fees.
In Wyoming, a measure to allow the Legislature to consider capping non-economic damages failed, and a second ballot issue that would allow the Legislature to create medical-malpractice review panels appeared to be up for a recount.