Bush-Norwood: bad deal for patients. (Washington Focus).

On September 30, 1999, Rep. Charles Norwood (R-Ga.) said this in defense of the Patients' Bill of Rights:

   Members on both sides of this aisle have joined together to address one of
   the most egregious violations of the individual rights upon which our
   nation was founded, the right to due process in court.... [T]he industry
   lobbyists who have profited behind the skirts of ERISA are now engaged in a
   last-ditch fight to deceive the members of this body and the American
   public.... The [bill] that I have cosponsored with [Rep. John Dingell
   (D-Mich.)] provides full relief from the travesty of current law.

One week later, the House passed the historic Norwood-Dingell bill by a vote of 275-151, but it never became law. Two years and one administration later, a curious sequel to the story of patient protection legislation has unfolded.

On August 1, 2001, the eve of the scheduled House debate on the Patients' Bill of Rights (H.R. 2563), President George W. Bush struck a deal with Norwood to add an amendment that would substantially weaken its consumer protection provisions.

The text of the amendment was not made available to House members until the morning of the debate, prompting Dingell to comment, "In the 40-plus years I have served here, I have never seen such a remarkable situation. Last night, we were presented with a piece of legislation that no one had ever seen before. [Norwood] could not explain it--had never seen it."

He also warned that if the amendment passed, it "would actually wipe away state laws that protect patients.... Enforcement of rights is everything, and rights without a measure to enforce them are totally meaningless."

Other House members who had worked with Norwood on the bill that passed two years ago and whose states have patients' rights laws expressed dismay during the debate. Rep. Ken Bentsen (D-Tex.) said, "[M]y former governor used to say, `Let Texans run Texas.' ... [W]hat always happens, whenever it gets in the way of the powerful special interests, this idea of devolving power to the states becomes wholly inconvenient. The bill before us today would upend the law in Texas that passed under George [W.] Bush's watch."

Rep. Lois Capps (D-Cal.) said, "In the absence of action by the federal government, my state ... recently acted to protect its citizens from overzealous cost-cutters in the HMOs.... But [Bush-Norwood] would override those state laws in order to protect HMOs."

Perhaps the most passionate speech of the day was made by Rep. Richard Gephardt (D-Mo.): "In the name of God and common sense, I hope members will vote against ... the Norwood amendment.... Stand for the people that you represent in this country. You have a solemn obligation to fight for their interests ... and not [for the profit of] health insurance companies and HMOs."

`Meaningless' bill

Some have referred to the Bush-Norwood compromise as an "HMO bill of rights." If it were enacted, patients with potential claims against HMOs could not file suit without winning approval from an independent review panel. Noneconomic and punitive damages would each be capped at $1.5 million.

The bill would require state courts to apply federal laws and rules, and it would preempt any state laws that are more favorable to patients. In addition, most patient class actions would be prohibited, meaning there would be no feasible remedy when an HMO's wrongful conduct injures a large number of its patients.

These restrictions sharply contrast with the provisions of the Senate-passed McCain-Kennedy-Edwards bill. [See Patients' Rights Legislation: What the Senators Said, Aug. 2001, at 11.] It lifts ERISA preemption and allows actions in state court under state law for cases involving medically reviewable decisions. For cases involving only administrative decisions, the Senate bill creates an exclusive federal cause of action, although full compensatory damages are available.

A play for tort `reform'

After the narrow adoption of the Bush-Norwood amendment (it passed by only five votes), Reps. Bill Thomas (R-Cal.) and Chris Cox (R.-Cal.) proposed an amendment that sought to fold extensive medical malpractice "reforms" into the patients' rights bill.

Although Thomas claimed he had the American Medical Association's support in this effort, that group's president wrote in a letter to Cox, "[W]e have expressed concerns in the past about coupling such reforms with the Patients' Bill of Rights. ... [I]t continues to be our hope that controversy surrounding this amendment will not interfere with the ultimate passage of meaningful ... legislation."

The Thomas-Cox measure would have capped noneconomic damages per action at $250,000; capped punitive damages at twice the plaintiff's economic loss or $250,000, whichever was greater; allowed defendants to make periodic payments of any award over $50,000; and established a defense to punitive damages for manufacturers of dangerously defective drugs and medical devices that had received FDA approval. The amendment would have covered all malpractice actions and products liability actions against manufacturers and sellers of drugs and medical devices.

Judiciary Committee Chairman Rep. John Conyers (D-Mich.) called it "the most severe and limiting malpractice amendment ever considered by the House."

The measure was defeated 221-207. Eighteen Republicans joined all but five Democrats who voted against it.

In the end, the House passed the amended Patients' Bill of Rights 226-203, then adjourned for the August recess. At this writing, the conference committee had not yet begun seeking a compromise between the House and Senate versions.

Kristin Loiacono is media relations coordinator for ATLA.