Professional Liability
Reform Legislation Remains on Life Support in 2nd
Session
Michael Scott, J.D., Director
Governmental and Legal Affairs
One of the unresolved ASA legislative priorities referred
to in my January column was passage of federal professional
liability reform legislation, an initiative strongly
supported by the White House. As Congress begins to
organize itself for the second session of the 108th
Congress, this column will look at the realities of
this issue in somewhat closer detail than was permitted
last month.
That the issue remains very much alive, at least in
the eyes of physicians, is demonstrated by the intense
debate that took place at the recent meeting of the
American Medical Association (AMA) House of Delegates.
Among the matters before the House was a resolution
sponsored by the Texas Medical Association (TMA) calling
for continued support for The Patients First Act of
2003 (S. 11) and for AMA not to pursue “specialty-specific
legislation that would divide and diminish the voice
of the House of Medicine.”
TMA was referring to a liability reform bill that
had been drafted by the majority staff of the Senate
Committee on Health, Education, Labor and Pensions
(HELP), which would have dealt only with obstetrical
and gynecological services. The bill had been drafted
in response to a suggestion by the Senate GOP leadership
— following its failure by 11 votes on July
9 to invoke cloture on debate relating to S. 11 —
to bring before the Senate a series of liability reform
bills involving, one at a time, those specialties
experiencing the most dramatic liability crisis, e.g.,
obstetrics, emergency medicine, rural care, etc.
By the time of the AMA meeting, there had been no
significant movement in the Senate to carry out the
leadership’s suggestion, and it was clear that
the “House of Medicine” was badly divided
on the wisdom of this approach. ASA, for example,
found nothing in the HELP draft bill that would extend
its protection to other providers in the delivery
room — putting anesthesiologists potentially
in the position of having the deepest pocket on the
scene. Other specialties, exemplified by TMA’s
resolution, were simply concerned about the piecemeal
legislative approach.
Compounding the problems was the fact that no one
could be certain where the 11 additional votes for
cloture were going to come from, and some observers
postulated that the leadership approach was merely
politically motivated to force Democrats to vote “against
babies” and not to make a serious run at passing
a single-specialty liability bill.
Proponents of the single-specialty approach viewed
it as the only opportunity, however slight, to get
a professional liability bill passed in the Senate
this year and to permit a decent bill thereafter to
be hammered out in conference with the House before
adjournment next fall. Given the Administration’s
active support for the House bill (H.R. 5), they reasoned,
the chances for success in conference might be good
if the Administration became actively involved.
After vigorous debate, the AMA House passed a watered-down
Texas resolution that made no mention of a single-specialty
bill but instead compelled AMA to work toward passage
of a bill that would not divide the House of Medicine.
The substitute resolution, introduced by an anesthesiologist
member of the California Medical Association, spoke
in broad enough terms to make it apparent that AMA
was not to work toward
either a single-specialty
bill
or one that would place California’s
successful $250,000 cap on noneconomic damages in
jeopardy.
Whatever the terms of the AMA resolution, it is difficult
to conceive of a professional liability bill, acceptable
to organized medicine, gaining the support in the
Senate necessary to block a filibuster. This is not
a reason, however, for easing the pressure for passage
of a strong bill. The chances appear very good, at
this point, that the number of Senators supporting
liability reform will increase in the 109th Congress;
Democrats have more seats in jeopardy than Republicans.
This issue will be the primary legislative priority
for ASA in 2004.
Appeals Court Upholds CA Limit
on ‘Board-Certified’ Ad Issue
In early January, the federal Court of Appeals for
the 9th Circuit upheld as constitutional a California
statutory ban on physicians claiming “board
certification” unless the certifying board is
a member of the American Board of Medical Specialties
or has equivalent requirements, or has a postgraduate
training program approved by the Acceditation Council
for Graduate Medical Education.
The defendant in the action was the American Academy
of Pain Management, which issues pain management credentials
for nurse anesthetists, among others.
The Court said that the California restriction reasonably
advanced the state’s interest in enabling the
public and medical professionals to rely on a term
that connotes a certain level of postgraduate training.
The decision will be further discussed in the next
issue of the ASA Newsletter’s “State Beat”
column.
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