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May 05, 2006
Copyright © Las Vegas Review-Journal


Ensign presses tort reform legislation

By STEVE TETREAULT
STEPHENS WASHINGTON BUREAU

WASHINGTON -- Sen. John Ensign of Nevada unveiled a new Republican bill Thursday that aims to boost doctors by limiting liability awards against them in big medical malpractice lawsuits.

Ensign urged senators to revisit the idea of capping jury awards for pain and suffering and limiting payouts to personal injury lawyers. Those are concepts that have deeply divided Republicans and Democrats and led to stalemates over the past four years.

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Fearful of being sued and faced with high premiums for malpractice insurance, high risk specialists like obstetricians are continuing to leave their professions, decline new patients, or practice "defensive medicine" that drives up health care costs, said Ensign, who was designated a GOP point man on health care.

"The bottom line is that patients cannot get the health care they need when they need it most," Ensign said in a Senate speech. "By definition this is a medical crisis. This crisis is affecting more and more patients and is threatening access to care."

Ensign cited Nevada, where the closure of the trauma care unit at University Medical Center in Las Vegas in 2002 sparked the Legislature to set liability caps at $350,000 on noneconomic damages. Voters approved further reforms in 2004 although the outcomes have not been clear cut.

The Nevadan maintained his new bill was sweetened to attract support by containing higher limits on awards. But a Democratic leader said it remains a nonstarter and it would probably be shelved in a procedural vote next week.

"The Senate will decide this is not the time to go forward with that," said Democratic Whip Richard Durbin of Illinois.

Democrats reject caps on jury awards and attorney fees, saying they shortchange patients who are harmed by bad medical care by making it difficult for them to pursue justice. They contend the blame for doctor shortages lies elsewhere, questioning insurance company malpractice coverage rates.

Durbin suggested Republicans were more interested in winning political points with their allies in medical fields who want changes in liability law. Ensign's bill is being brought to the Senate floor without hearings or committee debate, he said.

Majority Leader Bill Frist, R-Tenn., "has been told he just would be spinning his wheels" on medical malpractice, yet is pushing legislation anyway, Durbin said.

"It is almost like he was checking a box for some friends who are watching this issue," he said.

Of 21 states the American Medical Association had identified as having medical care crises, Durbin said all but three have updated their malpractice laws to address the problem, including Nevada, and the federal government should not step in.

But Ensign said the federal government pays 60 percent of medical bills through various health programs, making federal involvement necessary.

"Across the country we need to have a level playing field," he said. "The caps allow for certainty."

Ensign's new legislation is based on a Texas law that limits plaintiffs to collect up to $750,000 for "pain and suffering" depending on how their suits are structured. Previous Ensign bills limited pain and suffering damages to $250,000, based on malpractice law in California.

There are no limits on economic damages such as lost wages or reimbursement for medical care. Punitive damages awards would be capped at double economic damages or $250,000 whichever is greater.

The legislation also sets a sliding scale that limits fees collected by attorneys who handle malpractice cases, a provision that has stirred opposition from the American Trial Lawyers Association, which is aligned with the Democratic Party.

Despite little progress, Ensign said he planned to continue to promote the issue.

"Getting legislation can take years," he said in an interview. "You have to keep pushing it. This problem is not going away."

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