Tort reform for nonphysicians sparks debate
■ Democrats object to the bill's inclusion of damage caps for drugmakers and insurers, rather than just for physicians.
By David Glendinning — Posted Feb. 28, 2005
Washington -- In what may signify a change in tactics for opponents of the leading medical liability reform package in Congress, some lawmakers have started emphasizing the protections that the bill would afford to nonphysicians.
The Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2005 aims to use caps on damages to lower liability insurance rates for physicians and preserve patient access to care. But the bill also would limit liability for any entity providing health care products or services. Civil suits against drugmakers, insurance companies and medical device manufacturers would be subject to the same caps on noneconomic and punitive damages as suits against doctors, according to legal experts.
Noneconomic damages would be limited to $250,000, and punitive damages would be capped at twice economic damages. If the claim centers on a Food and Drug Administration-approved medical product, punitive damages would not be allowed.
HEALTH Act sponsors' refusal to focus solely on the physician side of the issue could sink the legislation, several Democratic lawmakers said at a recent House Energy and Commerce health subcommittee hearing.
"This bill won't pass if written like this," said Rep. Sherrod Brown (D, Ohio), the subcommittee's ranking Democrat. Members who might otherwise be open to debating a bill that addresses the physician problem alone have been turned off by the tactics of the measure's handlers, he suggested.
However, identical legislation passed the House last year, and it is unclear whether Democrats, who are in the minority, will be able to garner enough votes to prevent House approval of the reintroduced measure. Meanwhile, Democrats continue to pose a serious threat to passage in the Senate, where they have successfully blocked votes on the bill in the past.
Brown intimated that House Republicans are using reports about physician access problems stemming from skyrocketing liability insurance rates as political cover for rewarding major funding donors to the GOP.
"The physicians are being used by my friends on the other side of the aisle," he said.
The comment prompted a stern rebuke from Rep. Michael Burgess, MD (R, Texas), an obstetrician-gynecologist, who pointed to the high level of campaign contributions that trial lawyers have made to Democrats.
Rep. Diana DeGette (D, Colo.) repeatedly asked witnesses at the hearing whether they would support a liability reform bill if it focused on individual practitioners and omitted the protections for nonphysicians.
"If the problem is medical malpractice insurance rates, why have we included the pharmaceutical industry in this bill?" DeGette asked.
The AMA has no policy on the inclusion of other entities in the legislation but will support a liability reform bill only if it adequately addresses the physician problem.
"The AMA's position is that we are focused on fixing the broken medical liability system for physicians and patients," said AMA Immediate Past President Donald J. Palmisano, MD. "We will work with Congress and the administration on any bills that contain proven reforms to address the liability crisis for physicians."
The decision about whether nonphysicians should be removed from the list of protected parties is best left to lawmakers who are aware of what negotiations are necessary to produce a bill that can make the grade, said James R. Bean, MD, a neurosurgeon from Lexington, Ky., speaking on behalf of the Alliance of Specialty Medicine. Both the AMA and the alliance support the $250,000 noneconomic damage cap for doctors.
DeGette said repeated attempts to make even minor alterations to the HEALTH Act have met with total resistance from Republican leaders.
Lawmakers should be wary of dropping proposed liability protections for drug and device makers simply because they foresee no direct benefit for doctors and patients, said Richard Kingham, an attorney with Covington & Burling in Washington, D.C. If the threat of litigation prompts manufacturers to scale back research and development in certain risky areas, physicians could find that they do not have the most appropriate new treatments at their fingertips, he said to the panel.
Drugmakers in the spotlight
Discussion during the hearing focused particularly on the role of drugmakers in the tort reform debate. Witness Monty Huggins said he believes his wife died in September 2004 from a heart attack caused by the pain medication Vioxx. He noted that the act would allow him to collect up to only $250,000 in noneconomic damages and no punitive damages from Merck, the medication's manufacturer.
"The proposed medical malpractice bill supported by the president will protect the makers of drugs like Vioxx," Huggins said. "Why do we want to protect companies that may have knowingly killed people?"
A Merck official said the company does not comment on ongoing legal action.
Shielding pharmaceutical firms from large damage awards would relieve pressure on the companies to publicize potential problems with drugs that are already on the market, according to Joseph P. Glenmullen, MD, a psychiatrist at Harvard University in Cambridge, Mass. The recent "black box warning" stating that some antidepressants could put patients at higher risk for suicidal behavior, for instance, is the result of the threat of litigation, he said.
"Without these lawsuits, we would be without a vital avenue for protecting the public," Dr. Glenmullen said.
By the end of the hearing, exchanges between members of the committee and witnesses became so dominated by discussion of lawsuits against the pharmaceutical industry that Rep. Charlie Norwood, DDS (R, Ga.), sought to bring physician and patient access issues back into focus.
"I'm going to vote for [the HEALTH Act] if I ever see it again, but it's not because I love it, it's not because I agree with everything in it, it's not because I don't believe it can be made better," Dr. Norwood said. "It's because it may be the only vehicle where we have a possibility to ever try to bring these premiums into line and correct a serious problem."