Obstructionist Tactics Only Strengthen
the Case for Medical Malpractice Reform
By
Erin Murphy
For
the third time in the past year, Senate Democrats last week successfully
filibustered an attempt to bring medical malpractice reform legislation
to a vote. But apparently the obvious refusal of these senators
to even consider the issue is not enough for some reform opponents,
who are calling yet again for Senate Majority Leader Bill Frist
(R-Tenn.) to recuse himself from voting on any bills affecting the
healthcare industry.
The
California-based Foundation for Taxpayer and Consumer Rights sent
a letter last week to the Senate Select Committee on Ethics requesting
an investigation into Frists financial connections to the
healthcare industry. Senator Frist, the only medical doctor in the
Senate, has for many years held a sizable investment in the hospital
chain HCA, which was founded by his brother and father and wholly
owns subsidiary malpractice insurer Health Care Indemnity (HCI).
Theres
nothing new about this conflict of interest allegation. Voters have
known about the connection ever since the Majority Leaders
Democratic opponent took every opportunity to criticize his investment
ties during the doctors first Senate bid in 1994. Upon Frists
election to Senate, the ethics committee informed him there was
no conflict because neither he nor any of his immediate family members
owned a controlling interest in any healthcare company. Frist nonetheless
took the precautionary step of placing all his holdings in a blind
trust to avoid even the mere appearance of impropriety.
The
Senate Ethics Committee remains perfectly aware of the alleged conflict
and has repeatedly determined that it does not exist; voters remain
perfectly aware of Majority Leader Frists ties to the healthcare
industry and have repeatedly elected him anyway.
During
his tenure as senator, Frists holdings in HCA have remained
substantially the same and are publicly disclosed, so little is
likely to come of the Foundations complaint. But the repeated
allegation and the Senates continued obstructionist tactics
provide a more telling insight that opponents know medical
malpractice reform could have a real impact.
As
the Foundation pointed out in its letter to the ethics committee,
the proposed legislation might financially benefit both hospitals
and their insurers, i.e., it might do exactly what it is intended
to do. Evidence increasingly supports the medical professions
claims that the increasing costs of litigation and threats of outrageous
verdicts are contributing to a shortage of specialists in areas
such as obstetrics and neurology. By freeing up hospital funds and
decreasing the threat of litigation against these specialists, bills
like last weeks proposed legislation could provide an effective
incentive for doctors to continue to practice these specialties
and for hospitals to continue employing such specialists at sufficient
levels.
Ethics
complaints and filibusters arent the only diversionary tactics
employed in the battle against medical malpractice reform. Opponents
commonly argue that caps on recovery hurt patients who stand to
lose the most such as the permanently disabled or infants
injured at birth through costs of ongoing medical care and
inability to earn a future living. This argument is wholly without
merit, though, given that the proposed $250,000 cap would only apply
to non-economic damages, namely pain and suffering. Thus,
juries would face no limits when awarding damages in categories
including ongoing medical expenses, past and future earnings loss,
cost of obtaining domestic services, and loss of business or employment
opportunities.
Opponents
are often also quick to notice but slow to point out to the public
that any caps initiated by state legislation whether higher
or lower will preempt the federal caps. So if enough trial
lawyers can convince their state to pass a bill with a higher damages
cap than $250,000, plaintiffs can continue to recover at whatever
amount that state deems appropriate. Further, states would then
remain free to determine whether insurance regulation or malpractice
caps are a more effective way to curb their own costs of expanding
litigation.
Despite
being one of the most vocal groups in opposition to most reform
efforts, trial lawyers also have little to say about their
conflict of interest the plaintiffs bar certainly would
fare better financially without the limits on attorneys fees
that medical malpractice reform would impose. As the Wall Street
Journal pointed out regarding the conflict claim against Frist,
the Foundation for Taxpayer and Consumer Rights is in a somewhat
precarious position as an advocate for "consumer rights"
given that its own founder is a lawyer.
The
most revealing statement in the Foundations complaint is its
accusation that "Frists current involvement in the medical
malpractice debate rises beyond the level of general concern for
health issues." Thats exactly what makes Majority Leader
Frist and the reform advocates so dangerous: not only have they
identified a real problem, but they have taken the extraordinary
measure of actually creating legislation that, while probably not
a permanent solution, at least takes a step in the right direction.
Nothing could be more threatening.
Erin
Murphy is a Contributing Editor at the Center for Individual Freedom.
[Posted
April 15, 2004]
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