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In a somewhat surprising move, Senator Judd Gregg (R-NH) kept the issue of medical liability reform alive in the Senate, albeit for a brief moment. He did so on December 11th by introducing a medical liability reform amendment (S.A. 3673) to the Farm Bill that was nearly identical to legislation he introduced earlier this year (S. 244). Both pieces of legislation apply only to cases involving OB-GYN services, but in the case of the amendment, it applies only to services provided in rural areas – defined as a town or city with less than 20,000 people.

Gregg Amendment S.A. 3673 - Background

The proposal adopts the Texas model for caps, specifically a $250,000 cap on noneconomic damages for all providers named in a case, and the same cap for each of up to two institutions named in the case. The initiative also places limits on contingency fees, establishes new expert witness standards, and invokes sanctions against attorneys who file frivolous lawsuits. Unfortunately, the amendment also adopts the flawed collateral source reform/subrogation and periodic payment provisions that have plagued Sen. Gregg’s recent legislative efforts on medical liability reform.

During debate on the amendment, Sen. Gregg made note that with caps on noneconomic damages, “we do not have are these explosively large verdicts which essentially make it impossible for someone to pay the cost of the premium to support an obstetrics practice in a rural area.” Those speaking in favor of the amendment included both of Texas’ Senators (Kay Bailey Hutchison (R) and John Cornyn (R)), as well as both of the Senate’s doctors (Tom Coburn, MD (R-OK) and John Barrasso, MD (R-WY). Taking the lead against medical liability reform were Senators Dick Durbin (D-IL), Barbara Boxer (D-CA), Patrick Leahy (D-VT) and Ted Kennedy (D-MA).

PIAA Analysis

At the time of introduction, the Gregg amendment garnered 7 cosponsors – Senators Bob Corker (R-TN), Lamar Alexander (R-TN), Kay Bailey Hutchinson (R-TX), John Cornyn (R-TX), Wayne Allard (R-CO), Elizabeth Dole (R-NC), and George Voinovich (R-OH). Despite this show of support, on December 12th the Senate voted down the amendment by a vote of 51-43, with six Republicans voting against and no Democrats voting in support. Most disappointing about the vote was that three Senators who had previously voted in favor of medical liability reform (Olympia Snowe (R-ME), Mel Martinez (R-FL) and Saxby Chambliss (R-GA)) opposed the amendment. With the amendment’s sizable defeat, it confirms that the Senate is far from any serious consideration of caps on non-economic damages.

PIAA Position

The PIAA supports efforts to keep the issue of medical liability reform before Congress, especially reforms that reflect proven track records of success – such as in California and Texas. The PIAA did not, however, take an official position on this particular legislation due to the inclusion of weakened periodic payment language and provisions on collateral source rule reform which could actually be detrimental to states that already have reforms in place.

The PIAA applauds Sen. Gregg for keeping this issue before the Senate, and expresses its appreciation to all of those Senators who supported the amendment with their statements and/or votes. The PIAA strongly supports the amendment’s language surrounding caps on noneconomic damages and contingency fees, while it intends to continue to work with Sen. Gregg’s office to correct the problematic elements of the amendment’s collateral source and periodic payment provisions.

For more information, please feel free to contact Mike Stinson, Director of Government Relations, at mstinson@piaa.us or Mike Kalutkiewicz, Government Relations Representative, at michaelk@piaa.us.

To read more about the amendment, including its full text, go to http://thomas.loc.gov/cgi-bin/bdquery/z?d110:SP03673: