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Gavel and stethoscope; photo illustration by DNY59 / www.pbs.org.
Gavel and stethoscope; photo illustration by DNY59 / www.pbs.org.

There are two things you don’t want to see being made – sausage and legislation. ~ Otto von Bismarck. This axiomatic quote says it all: you don’t want to see these things being made because the process will likely turn your stomach. The latest effort by Washington’s true masters is no less disgusting. Lobbyists for the insurance and medical industries are proudly – and loudly – claiming responsibility for a recent medical malpractice reform bill.

Of course, there have always been lobbyists and they have always influenced legislation in our country. However, one of their own, Stanley Brand who once served as general counsel to former Democratic House Speaker Thomas “Tip” O’Neill Jr., said, “Look, when I worked for Tip O’Neill, the definition of a good lobbyist was like a German U-boat — they only come up at night for air. They didn’t speak publicly about the role they played in a bill.” He’s right. Lobbyists well, lobbied, for their causes and those lawmakers who believed in their causes took them up and wrote legislation. The lobbyists may even have helped a bit. Or, a lot. In the issue of medical malpractice tort “reform,” the lobbyists didn’t help at all. They simply wrote the legislation themselves and got their pet House representatives to push it through.

What, exactly, did they do? They authored a bill that puts big limits on damages for Americans injured by medical malpractice and caps on what the lawyers who fight for those injured can collect. The legislation puts a federal cap of $250,000 on non-economic damages: pain & suffering, permanent disfigurement, and other serious injuries that don’t necessarily keep the injured party from working. Oh, and if the states – traditionally able to set their own rules for torts – don’t like it… this new legislation would force them to set their own limits or accept the new federal standard. This is true even in states whose supreme courts have ruled that such limits are unconstitutional, as they did in Florida and Washington. Roughly two dozen states’ supreme courts have such rulings.

This last bit has representatives from both sides of the aisle upset.

Rep. John J. Duncan, Jr. (R-TN), who voted against the bill, said, “This represents a massive expansion of federal authority.”

Rep. Steve Cohen (D-TN) also voted “no.” He stated that the legislation is “a power grab by Washington.”

Aside from House representatives and patient advocacy groups, the bill caught the attention of other critics. One, nonpartisan ethics scholar Norman J. Ornstein with the American Enterprise Institute, said, “This is a reflection of the new Trump, in-your-face era. The way it’s supposed to work is you meet with outside groups that would be affected by it. You hold hearings, but you write the bills.”

Not so this time. This bill got virtually no public debate and was, in fact, almost verbatim to what the lobbyists wrote. Rep. Steve King (R-IA) introduced the bill on February 24. Mike Stinson, one of the Physician Insurers Association of America’s lobbyists, said, “There wasn’t a dramatic change in how we wrote it.”

Rep. Steve King (-IA); image courtesy of www.en.wikipedia.org.
Rep. Steve King (-IA); image courtesy of www.en.wikipedia.org.

Rep. King admits that the lobbyists did the draft of the bill as well as helping with its final version. He said his “very talented staff” played a key role, too. His words on the lack of debate, and the state supreme court rulings that non-economic damages caps are unconstitutional, show him to be either an elected official with little understanding of the system or one with little regard for established rules. Or, both.

“I hear their complaints,” he said, referring to the critics’ comments on the lack of public hearings. Given that Congress has already looked at the med mal system dozens of times, he added, “I just don’t want to have to ride that horse again. Let’s get ’er done.” Though he said his staff added “important nuances” to the bill that address states’ rights, he also said, “Some of these state supreme court rulings are bad rulings.”

You read correctly. The esteemed representative from the great state of Iowa doesn’t want to follow established procedure because he feels there’s no value in it. And, if you don’t like a state supreme court’s rulings, forget states’ rights and simply use “important nuances” to force the states to toe the line. Democracy in action (yes, that is sarcasm).

If you think your elected official’s response is bad, try on the comment from Richard E. Anderson. Mr. Anderson is the chairman and CEO of the Doctors Company, the country’s largest doctor-owned med mal insurance company.

Mr. Anderson said, “I don’t think any of us would want to live in a society where all laws are imposed by regulators, a judge, a congress, a president. We want to live in a society where the laws meet the needs of those they are meant to govern. Ideally, it should be a collaborative process in the context of the overall national interest.”

One cannot fail to see the lack of logic in this statement. First, Congress is the legislative body of the United States government. This is where law is supposed to originate. Second – and certainly more telling in terms of Mr. Anderson’s priorities – is the statement that laws should “meet the needs of those they are meant to govern.” This new legislation meets the needs of one group and that is not injured patients or the American people in general. Simply put, it meets the needs of the medical and insurance industries. Last, “it should be a collaborative process in the context of the overall national interest.” With whom was there collaboration? Certainly not with those who will suffer the bill’s ill-effects.

What about the “overall national interest?” One could argue, as do the proponents of this awful bill, that med mal “reform” will lower the cost of medical care, in addition to a host of other benefits. One could also argue that the moon is made of green cheese, but that doesn’t mean we should be mining moon rocks for our salad bars.

We’ve seen that such “benefits” do not materialize in states with tort “reform.” Lower insurance rates? Guess again. Increased supply of doctors? Nope, not that. Lower medical costs? Think again. A lack of negative impact on those harmed? Not a chance.

Whatever arguments proponents of this “stealth” legislation produce, the bottom line is that med mal “reform” favors the medical and insurance industries only and leaves the rest of us in bad shape.

The bill passed the House on June 28 with a vote of 218 to 210. A total of 191 Democrats and 19 Republicans voted “no.” It’s now up to the Senate. Currently, the bill isn’t getting much traction there; however, its supporters are hopeful that the GOP’s failure to repeal the ACA could convince Senate leaders that the bill is a “surer path to victory.”

Here’s hoping cooler heads in the Senate see through the smoke and mirrors and shoot down this bill, too.

Sources:

In Trump era, lobbyists boldly take credit for writing a bill to protect their industry
Lobbyist groups takes credit for malpractice bill passed by House
House Republicans pass tort bill by slim margin

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