August 2003 Bulletin

News from the federal front–So close yet so far

Medical Liability Reform Campaign

By David A. Lovett, JD

The time has never been more favorable to enact meaningful federal medical liability reform. The leadership of the U.S. House of Representatives and the Senate support tort reform. There is also a President who is actively supporting this initiative. In addition, we have a physician community that has transformed itself over the last few years from one of passive acceptance to one of political activism.

Yet, during the 11 years that I have worked on behalf of the AAOS on federal liability reform, the core elements have not changed:

However, we see glimmers of hope. Several specialty physician organizations now maintain Political Action Committees (PAC) that raise between $600,000 and $1.2 million during a two-year election cycle. The AAOS PAC has already received almost as much in contributions during the first six months of 2003 as it did in the entire 2001-2002 election cycle.

On a grassroots level, the physician community is generating more contacts with representatives and senators to convey our concerns. Orthopaedic surgeons have become exponentially more active in the political arena, and the AAOS Board of Directors has identified this issue of paramount importance to the membership by making a $1 million commitment to a Medical Liability Reform Campaign effort. While there is still a long way to go during the next few years, there is now a window of opportunity to achieve success. Federal medical liability reform is possible.

What did the Senate vote mean?

On July 7, Senate Democrats were successful in blocking consideration of the medical liability reform bill, S. 1–the Patients First Act. The procedural vote to end debate and to begin consideration of the bill was 49 "ayes" to 48 "nays." Under the rules of the Senate, 60 votes are needed to move forward and consider any legislation. This vote is a technical procedure known as "cloture." Once the cloture vote is successful, only a simple majority of those present is needed for passage of any legislation.

This most recent Senate liability vote split largely along party lines, with all Republicans voting yes for ending debate (for going forward and considering the bill), except for Sens. Richard Shelby (R- Ala.) and Lindsey Graham (R-S.C.) who voted "no" with the Democrats. Joined by Sen. Jim Jeffords (I-Vt.), all Democrats voted "no" against moving forward (against liability reform). Three Democratic senators were absent, and did not vote: Sens. John Kerry (Mass.), Zell Miller (Ga.) and Bob Graham (Fla.).

Sen. Rick Santorum (R-Penn.) characterized this vote as a "bed check" to determine where senators stand on this issue. This vote was intended to set the stage for additional liability votes that will probably take place in early fall 2003 and in spring 2004. Also, it now identifies which senators should be targeted for public education on the need for medical liability reform.

The need for reforming state laws

Although it is difficult to achieve Federal liability reforms, our efforts help focus attention on the need to change state law as well. A good analogy to this situation can be seen in the attempts over the last decade to enact a National Patients' Bill of Rights. While this has not yet been achieved at the federal level, the activities of the AAOS and other medical societies resulted in the enactment of meaningful patient protection legislation in a vast majority of states. There is no doubt that federal actions will act as a catalyst for state initiatives.

A note on the use of the word "malpractice"

AAOS and the several specialty societies and the coalitions in which we participate are making a concerted effort to eliminate the word "malpractice" from discussions on medical liability reform with the press and the public. We have been encouraging physicians to refrain from using the word "malpractice" in this public health care debate.

"Malpractice" has a negative connotation: it implies malfeasance, and it plays right into the trial lawyers' argument that physicians are "guilty" of wrongdoing. The current crisis is not one of malpractice, but one of unreasonable premium increases forcing competent physicians to leave the practice of medicine and/or stop the performance of high-risk procedures, leaving patients vulnerable. Instead of the word "malpractice," a more appropriate phrase is "medical liability reform."

A final thought

Over the last decade, the AAOS has had a long history of forming coalitions and working together with other medical societies to achieve our objectives. We have had a great deal of success in launching coalitions such as the Practice Expense Coalition, the Patients Access to Specialty Care Coalition and the Alliance of Specialty Medicine to name a few. We are about to embark on the most ambitious of these efforts with four medical specialty societies committing $1 million each to engage in a multi-million public relations effort. These four medical organizations also have brought to the table their political action committee (PAC) resources, which provide an additional few million dollars to our political activities.

The physician community has come "late to the dance" of political activism. But, every professional poll or survey of the American people confirms that a substantial majority believes that there is a medical liability crisis in the United States, and that this situation is jeopardizing access and quality of patient care. With the public on the side of the physician community, it may be easier to convince Congress that the time to act is now. However, we must continue to keep this issue alive in the health policy arena by actively pursuing medical liability reform and devoting the resources necessary to achieve this objective.

David A. Lovett, JD, is director of the AAOS Washington office. He can be reached at lovett@aaos.org.


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