August 2003 Bulletin

AAOS medical liability reform legislative activities: A chronology

Medical Liability Reform Campaign By Kathryn M. Pontzer

The AAOS has played an active role in supporting and shaping federal medical liability reform legislation for the past decade. As a member of the Board of Directors of the Health Coalition on Liability and Access (HCLA) since 1994, and as co-chair of the medical liability reform workgroup of the Alliance of Specialty Medicine, AAOS has been intimately involved in assisting federal legislators in drafting legislation and in enlisting the votes for various bills. Some of its more recent activities are highlighted below.

• In early 2002, AAOS worked with Reps. Jim Greenwood (R-Penn.), Christopher Cox (R-Calif.) and other members of the U.S. House of Representatives to draft H.R. 4600, the HEALTH Act, modeled closely after the California MICRA law.

• Over 150 AAOS members attended the 2002 National Orthopaedic Leadership Conference (NOLC) and participated in a press conference with Rep. Greenwood and other legislators to introduce the HEALTH Act. John D. Kelly IV, MD, an orthopaedic surgeon from Pennsylvania served as a spokesperson describing the liability crisis from the perspective of orthopaedists.

• The HEALTH Act passed the House in July 2002 by a vote of 217 to 203, but a Democratically-controlled Senate failed to take action.

• On July 25, 2002 President Bush urged adoption of national tort reform measures in a report released by the U.S. Department of Health and Human Services.

• At the President's Economic Forum in Waco, Texas, on August 13, medical liability reform was a major topic of discussion. AAOS was represented by Board of Directors' Secretary E. Anthony Rankin, MD.

• After intense urging by AAOS and others, the White House abandoned the use of the term "malpractice" in the President's 2003 State of the Union Address in favor of the phrase "medical liability reform."

• Throughout the past year, AAOS has assisted the White House in identifying orthopaedic surgeons with compelling stories to participate in roundtable discussions with President Bush held throughout the country. At one such event in Scranton, Penn., Michael O. Fidler, MD, an orthopaedic surgeon from Charleston, W.Va., was invited to participate as one of several physicians and patients.

• In February 2003, Reps. Greenwood, Cox, John Murtha (D-Penn.) and others, introduced H.R. 5, the HEALTH Act. Improvements to the legislative language continued to be made through the committee "mark-up" process, and the bill passed the House on March 13 by a vote of 229 to 196.

• In an attempt to move this issue in the Senate, Sens. John Ensign (R-Nev.) and Judd Gregg (R-N.H.) introduced S. 607, the HEALTH Act, also modeled after MICRA. Recognizing that S. 607 faced an uphill battle for support from Democratic senators and some Republicans, Senate Majority Leader Bill Frist (R-Tenn.) and Senate Majority Whip Mitch McConnell (R-Ky.) worked with Sen. Dianne Feinstein (D-Calif.) in an attempt to reach bipartisan consensus on legislation. Talks ultimately broke down when Sen. Feinstein publicly released a compromise proposal strongly opposed by the California Medical Association and other California physicians.

• In May 2003, James H. Herndon, MD, AAOS president, and Scott S. Cooper, MD, representing the Arkansas Orthopaedic Society, met with Sen. Blanche Lincoln (D-Ark.) during the Alliance of Specialty Medicine Spring Legislative Day. Sen. Lincoln, along with Sen. Feinstein, had been strongly urged by AAOS and others over the past several months to take the lead for Democratics supporting tort reform.

• On June 26, the Senate introduced S. 11, the "Patients First Act," modeled more closely after the House bill than S. 607. As expected, Majority Leader Frist brought S. 11 to the floor for a vote the week of July 7. It failed to get the 60 votes necessary for cloture to end filibustering and was withdrawn.

• AAOS continues to participate in regular "kitchen cabinet" meetings held by Sen. Rick Santorum (R-Penn.), chairman of the Senate Republican Conference, to strategize on next steps for the Senate. The Senate leadership continues to favor bringing this issue forward for another full Senate floor discussion and possible vote in the fall.

Kathryn M. Pontzer, JD, is deputy director of the AAOS Washington office.