- The Washington Times - Friday, June 29, 2001

The Senate yesterday agreed overwhelmingly to a compromise to prohibit lawsuits against most employers that provide health care benefits to workers, but Republicans failed to limit the ability of trial lawyers to enrich themselves through multimillion-dollar malpractice settlements.

The Senate voted 96-4 to give employers immunity from liability in lawsuits by employees against insurance companies and health maintenance organizations (HMOs) that administer their health plans. Yesterday's vote paves the way for final passage of a patients' bill of rights next week.

The compromise amendment offered by Republican Sens. Olympia J. Snowe of Maine and Mike DeWine of Ohio, and Democratic Sens. Ben Nelson of Nebraska and Blanche Lincoln of Arkansas brought to an end two weeks of wrangling over employer lawsuits, which Republicans said otherwise would cause thousands of companies to stop offering health benefits to their employees.

Mrs. Snowe said the legislation provides "a fire wall" for employers against lawsuits by employees.

But senators voted 62-38 to kill an amendment by Sen. Christopher S. Bond, Missouri Republican, to limit attorneys to no more than 15 percent of court awards in malpractice and injury cases against insurance companies and HMOs under a pending Democratic-endorsed patients' rights bill.

The bill, sponsored by Sen. John McCain, Arizona Republican, and Democratic Sens. Edward M. Kennedy of Massachusetts and John Edwards of North Carolina, would allow patients denied medical coverage by their health insurers and HMOs to sue for damages in federal court for up to $5 million. The lawsuits also would be allowed to go to state court, where punitive damages are unlimited.

The Senate also set aside an amendment by Sen. John W. Warner, Virginia Republican, to limit attorneys to one-third of awards up to $100,000, one-fourth between $100,000 and $500,000, and 15 percent over $500,000.

Mr. Bond said the bill would allow unlimited medical, pain-and-suffering, punitive and class-action awards in state courts and up to $5 million punitive damage awards in federal courts.

"There's the bombshell," he said. "That opens this baby up to anyone who likes to file lawsuits."

Trial lawyers typically take 85 percent of court awards, leaving patients who win cases with just 15 percent of proceeds in most cases, he said.

However, the decision to exempt most employers from lawsuits by their workers was considered a major victory for many Republicans, who feared the provision in the McCain-Kennedy-Edwards bill would drive up health insurance costs and force millions of Americans to lose their health care coverage.

The Snowe-DeWine-Nelson-Lincoln compromise uses a "designated decision maker" to assume liability in court lawsuits.

"For companies that contract with an insurer that in turn pays for beneficiary claims and administers the plan and benefits, the insurance company automatically becomes the designated decision maker and assumes liability for medical decisions," Mrs. Snowe said.

"Companies that continue to self-insure, or choose not to designate a decision maker, would have the more limited protections extended in the McCain-Edwards-Kennedy bill, to the extent an employer can prove that they do not participate in decisions," she said.

"Companies that both self-fund and self-administer their plans, and so retain decision-making authority over their employees' medical decisions, would remain liable for those decisions under the legislation," she added.

Mrs. Snowe said about 5 percent of companies with about 6 million employees have self-financed, self-administered plans and would remain fully liable to employee lawsuits.

In another development, the Senate rejected on a 58-42 vote an attempt by Sen. Arlen Specter, Pennsylvania Republican, to restrict all patients' lawsuits to federal court.

Mr. Edwards successfully argued that employees should have the right to sue health plans in state courts, where doctors and hospitals are already liable for malpractice and injury claims.

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