WASHINGTON, Feb. 25 (UPI) -- The Senate's refusal this week to move forward on medical malpractice legislation simply leaves the states to deal with a nationwide problem -- again.
It happened before in prescription drugs and the uninsured. Political party not withstanding, Congress or the White House drops the ball and it bounces 50 times.
During the years Congress could not agree on federal legislation to add a prescription drug benefit to Medicare, many states picked up the ball and crafted drug discount programs for their elderly. Pharmaceutical companies also pitched in. For many low-income seniors it was a life-saving move but it also burdened already tight state budgets.
Healthcare analysts say there is no political will in this White House or in Congress to do anything substantial this year to address the almost 44 million uninsured in the United States. President's Bush's plan for tax credits and health savings accounts will help only a fraction of that population.
In 1997 Congress did establish the Children's Health Insurance Program -- CHIP -- but simply as a mechanism for the states to set up programs through their Medicaid plans or private insurers to cover more poor children. The federal government provides matching money for state programs.
Medical malpractice appears to be no different, despite vows by Senate Majority Leader Bill Frist, R-Tenn., to return to the Senate with different bills that offer caps and limits on non-economic damages for malpractice lawsuits. The latest bill that bounced Tuesday would have capped non-economic damages to $250,000 and included only obstetricians and gynecologists.
The House last year passed more comprehensive malpractice legislation and it died in the Senate. Not much appears to have changed in 2004 as Democrats call these attempts "industry bills" with payment caps geared to protect insurance companies at the expense of patients. Republicans claim the Democrats simply are protecting their own special interests -- the trial lawyers who make millions in bringing such cases. Each side has some statistics showing damage caps either do or do not work.
"... the medical liability system, as currently being carried out, is hurting the American people. It's hurting individual patients," Frist told reporters. "And I can say that so clearly because it used to be people would think it was just money and how much doctors are having to pay for insurance. Now it's access. As you just heard, you have doctors moving one state to another state because of insurance premiums that are 14, 15, 20 times higher. You have doctors stopping delivery of babies, which affect moms, when their obstetricians no longer can take care of them, and you have trauma centers that are closing."
So while the political argument goes on in Congress, the states are on their own but driven toward malpractice legislation by the American Medical Association -- a key player representing physicians.
The AMA, even though it has one of the biggest lobby efforts on Capitol Hill, has not been able to push through federal malpractice legislation to help its physicians, some of whom pay six-figure malpractice insurance premiums each year.
All other healthcare lobbies aside, for some years there was a feeling on Capitol Hill the concerns of physicians fell on deaf ears -- or perhaps that what was being heard sounded more like whining about government reimbursements from a profession that didn't seem to be financially suffering.
More recently, however, the financial problems physicians face with declining Medicare reimbursements, coupled with higher costs of doing business and now pushed by some alarming premium increases for malpractice insurance, have found at least a more sympathetic ear on the Hill, but not agreement on a solution.
So the AMA set off across the nation, armed with statistics that show the average medical malpractice jury award in 2001 was $3.9 million. In states without malpractice laws, physician premiums for malpractice coverage increased between 30 percent and 75 percent in 2001. The bottom line it said: medical malpractice suits add $60 billion to $108 billion per year to the cost of healthcare in the United States and reduce access to healthcare for millions of people.
Dr. Donald Palmisano, a physician and a lawyer who is the current AMA president, told United Press International the organization is going to be "relentless" in pursuing malpractice legislation on the state and federal level. He said the organization would prefer federal legislation but will help states in any way it can to take action on their own.
The Agency for Healthcare Research and Quality has found 24 states have laws that limit damage payments in malpractice cases. The list includes Alaska, California, Colorado, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nevada, New Mexico, North Dakota, Ohio, South Dakota, Texas, Utah, Virginia, West Virginia, and Wisconsin.
The AMA has designated crisis states -- those in which healthcare access and affordability are threatened by the cost of malpractice lawsuits and malpractice insurance premiums. These are states where physicians retire early or leave the profession rather than pay high malpractice premiums, or move to states with less expensive insurance; where physicians refuse to perform high-risk procedures or, as in the cases of ob-gyns, stop delivering babies. In Texas, for example, which has a new malpractice cap law, roughly half the counties do not have an ob-gyn in residence.
"We have 19 states in crisis -- 140 million people live in those states," Palmisano said.
An AMA analysis found states facing a medical malpractice insurance crisis include: Arkansas, Connecticut, Florida, Georgia, Illinois, Kentucky, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Washington, Nevada, West Virginia, and Wyoming.
Mississippi, Missouri, Ohio, Texas, Nevada and West Virginia are on the AMA crisis list even with malpractice laws in place.
Twenty-five other states have the potential to be "in crisis," the AMA has found. Six states are considered stable: California, Colorado, New Mexico, Louisiana, Wisconsin, and Indiana -- but even there signs of problems are seen, the AMA said.
The American Trial Lawyers Association, in its literature, has rebutted the AMA's claims.
"None of these efforts ... is going to result in better medical care for anyone. It is not going to result in better access to care, it's not going to result in lower malpractice premiums. It's simply going to result in still greater profits for the insurance industry," Carlton Carl of the 60,000-member ATLA, told UPI.
There are studies that show having malpractice caps in place do not necessarily guarantee that insurance premiums for physicians in that state will decline. A Congressional Budget Office study released in January found there are many factors affecting insurance premiums, including malpractice payouts, rising costs overall and lower financial investments on Wall Street.
A General Accounting Office study of the issue done in August 2003, which included the AMA crisis states, did not discount that a problem existed but found "many of the reported provider actions taken in response to malpractice pressures were not substantiated or did not widely affect access to health care."
"For example, some reports of physicians relocating to other states, retiring, or closing practices were not accurate or involved relatively few physicians. In these same states, our review of Medicare claims data did not identify any major reductions in the utilization of certain services some physicians reported reducing because they consider the services to be high risk, such as certain orthopedic surgeries and mammograms," the report said.
The AMA remains undaunted, and has been making what it calls House Calls to its designated crisis states to raise awareness and push state legislators to take action. This month Connecticut, which does not have a malpractice cap law, was on the receiving end of such a visit. The AMA said recent jury awards in Connecticut included verdicts of up to $20 million.
Palmisano said his message is to "bring balance and common sense" back to medical malpractice -- even if he has to do it one state at a time. Surveys have shown a large majority of Americans support some type of limits in such cases.
Sen. Dick Durbin, D-Ill., accused his Republican counterparts Tuesday of bringing to the floor of the Senate a malpractice bill that had not gone through the committee process, so they could force a roll call vote and go home and tell constituents in this election year they had done something on malpractice. As of Wednesday, neither party could make that claim.