- The Washington Times - Friday, June 22, 2001

As the Senate prepared to open debate on the Democrats top priority, legislation establishing a so-called "patients bill of rights," President George W. Bush asserted Wednesday that he wanted to sign such a bill "before this year is out." But he warned that he would oppose any legislation that invited unnecessary lawsuits against HMOs. Finding such a bill will be a neat trick. Thats because both bills the Senate will be considering open the door to a potentially unlimited number of frivolous and unnecessary lawsuits, whose only certain outcomes will be to serve as cash cows for the trial lawyers, to increase the cost of health care for everyone and to reduce employer-provided health insurance for still more workers.
By far the more egregious of the two bills is the one sponsored by Teddy Kennedy, the Massachusetts Democrat whose counterproductive handiwork goes without saying; John Edwards, the North Carolina Democrat and former trial lawyer who, as expected, will be carrying the bags for the viper wing of the attorneys bar; and no surprise here John McCain, the renegade Arizona Republican who still cant come to terms with the fact that his party decisively rejected his candidacy for the presidency.
Current law generally permits lawsuits against health plans to be filed only in federal court, where damages are mostly limited to the cost of the treatment denied, court costs and legal fees. The McCain-Edwards-Kennedy bill, which Mr. Bush has already said he "cant live with," would allow patients to sue their health plans and probably their employers as well, though the sponsors deny it in state court, where they could receive unlimited damages. (A state court in California recently awarded a single cigarette smoker $3 billion!) In federal court, civil damages could reach $5 million, while non-economic damages i.e., "pain and suffering" and economic damages e.g., loss of earning power would be unlimited.
The other Senate bill is sponsored by Bill Frist, the Tennessee Republican who was a heart and lung transplant surgeon before running for the Senate; John Breaux, the centrist Democrat from Louisiana; and James Jeffords, the Vermont independent whose recent bolt from the Republican Party put the Democrats in charge of the Senates agenda. While Frist-Breaux-Jeffords, which Mr. Bush has endorsed, does not go as far as its alternative in exposing the nations health care system to the voracious greed of the trial lawyers, it nonetheless advances such exposure in a way that would surely increase the cost of health care and make employer-provided insurance less available. Under Frist-Breaux-Jeffords, lawsuits could be filed in federal court seeking unlimited economic damages and non-economic damages limited to $500,000.
One major problem is that companies often find it cheaper and easier to resolve frivolous cases by writing a check in an out-of-court settlement, regardless of merit. The inevitable result is the encouragement of more such suits, causing health care premiums to leapfrog. The trial lawyers seem poised to do to the health insurance industry what they did to the malpractice insurance industry, and that cannot be an acceptable development. Mr. Bush should signal his determination not to let that happen.

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