Why Nothing Gets Fixed

By DOUGLAS WALLER/WASHINGTON

The medical malpractice issue is a great one if you're a Democrat siding with the lawyers who sue, or if you're a Republican looking out for the doctors and insurers who get sued. It's not so great if you're trying to find a compromise among these powerful, warring professions. But Senator Dianne Feinstein, a liberal Democrat from California, decided to give it a try, and her experience is a case study in how the politics of malpractice insurance works--or doesn't--in Washington.

Feinstein, 69, would seem well positioned to broker a deal. A member of the Senate Judiciary Committee, she has close ties with lawyers, who contributed almost $500,000 to her campaigns over the past five years, more than she received from any other group. Yet she sponsored a bill to protect high-tech firms from Y2K liability, which trial lawyers opposed. And she comes from a medical family. Her father was chairman of the department of surgery at the University of California Medical Center, and her second husband Dr. Bertram Feinstein, who died in 1978, was a neurosurgeon. He had eight malpractice suits filed against him, but neurosurgeons get sued a lot because of their high-risk operations.

Late last year Senator Feinstein began meeting with California doctors in an effort to come up with a national version of her state's malpractice law. California allows unlimited amounts to be awarded for the economic damages a patient suffers as a result of a doctor's error, such as lost wages and medical bills, but caps noneconomic awards for pain and suffering at $250,000. The cap works, Feinstein believes. Nationwide, doctors' insurance premiums grew 420% from 1975 to 2001, while California's premiums, she says, are up only 168%. (Some experts credit the lower premiums to insurance reforms the state also adopted.)

After President Bush praised the California law in January, Feinstein said she would work with the White House. The next day she got a call from new Senate majority leader Bill Frist. A renowned surgeon, Frist desperately wanted the Senate to pass a bill curbing malpractice-insurance costs. And he just as desperately needed a Democrat to co-sponsor the measure. Feinstein agreed to help.

It was complicated from the start. Doctors and lawyers spend heavily to protect their interests on Capitol Hill. The American Medical Association contributed $2.7 million to candidates in the 2002 congressional elections (60% went to Republicans), and the Association of Trial Lawyers gave out $3.7 million (89% went to Democrats). Feinstein was hit from all sides. Senate Democrats, most of whom oppose curbs on jury awards, were angry with her for breaking ranks. Lawyers' groups and consumer activists complained that the caps discriminated against low-income victims of malpractice. Some said she couldn't be objective because her late husband had faced malpractice suits.

Feinstein and Frist drafted a compromise. Since California's $250,000 cap was set 28 years ago, says Feinstein, today it would be an inflation-adjusted $780,000. So she and Frist suggested doubling the cap to $500,000. For catastrophic cases that resulted in severe disfigurement, severe physical disability or death, says Feinstein, the cap would be the greater of $2 million or $50,000 times the number of years of life expectancy. The 25 states that have laws limiting damages could keep their caps if they did not want to adopt the Federal Government's.

When Feinstein floated the draft measure, she hit two walls. Trial lawyers hated caps. And doctors said the caps were too high and wouldn't stabilize their malpractice premiums. "There's just no way to proceed at this time," Feinstein says. The House, where Republicans have firmer control, has passed the $250,000 cap Bush wants. But for now, a bill like Feinstein's won't pass in the Senate. She blames the deadlock mostly on doctors who won't compromise. "There has to be a change of heart in the medical profession," she says, "for something to proceed." --By Douglas Waller/Washington