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Med Mal Reform Sidetracked In Senate



Medical malpractice reform legislation is at least temporarily sidetracked in the Senate after sponsors of the bill failed to get the 60 votes needed to avoid a filibuster.

The motion to invoke cloture on S. 11 lost by a 49-48 vote.

S. 11 would place a $250,000 cap on non-economic damages in medical malpractice cases, limit punitive damages to $250,000 or two times compensatory damages, whichever is greater, and establish proportionate liability in malpractice cases.

Industry supporters of S. 11 expressed frustration with the vote, but said they would still work to move the legislation.

“We are disappointed we couldnt get more votes,” said Anne Sittmann, a representative of the Des Plaines, Ill.-based National Association of Independent Insurers. “We hope to have another opportunity to address the issue.”

David Farmer, senior vice president of federal affairs with the Downers Grove, Ill.-based Alliance of American Insurers, said the vote was more a political exercise than a substantive one since it was pretty well understood that there would not be 60 votes. But hopefully, the issue will come up again, he said.

Republican leaders brought S. 11 up for a vote after efforts to craft a compromise that could draw bipartisan support apparently collapsed. Two months ago, reports began circulating that a compromise was possible if caps on non-economic and punitive damages were increased to $500,000. But, sources say, a final agreement could not be reached.

The Senate did not vote on a substitute malpractice bill that was developed by Sens. Richard Durbin, D-Ill., and Lindsey Graham, R-S.C., and which would have targeted the insurance industry. That legislation would repeal the industrys McCarran-Ferguson antitrust immunity for allegations of price-fixing, bid-rigging and market allocations relating to medical malpractice insurance.

Also, the Durbin-Graham bill would direct the Treasury Department to conduct a feasibility study on establishing a federal reinsurance fund to pay non-economic damages in med mal cases.

According to a summary of the bill, this fund would not only help insurers with accurate pricing, it would protect them from rising reinsurance costs.

The legislation would also establish an independent advisory commission to study the causes and scope of recent increases in med mal premiums, and make recommendations on ways to reduce them.

As for tort reform, the Durbin-Graham bill would require all plaintiffs attorneys to include an affidavit from a qualified health care professional on the nature of the injury and for the attorney to certify that the case is meritorious. Attorneys filing erroneous certifications would be subject to civil penalties.

It is uncertain whether the Durbin-Graham bill will come up now that S. 11 has been sidetracked.

Reproduced from National Underwriter Edition, July 14, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved. Copyright in this article as an independent work may be held by the author.


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