Med-mal on his mind.

There he goes again. Just as he did in 2003, President Bush used the occasion of his recent State of the Union address to call for tort "reform." Here is what he said about medical liability: "To protect the doctor-patient relationship and keep good doctors doing good work, we must eliminate wasteful and frivolous medical lawsuits."

It was a single line, delivered between a sentence about the value of computerizing health records and another about extending tax credits to those who buy catastrophic health insurance. But even the one line should be enough to remind us that trial lawyers remain a target.

A day after the president spoke, Senate Majority Leader Bill Frist (R-Tenn.) made his own appeal for passing malpractice restrictions:

   We cannot just talk about it; we need to act.
   Those frivolous lawsuits are exploding
   health insurance premiums. So when we
   are talking about the 44 million people uninsured,
   and we are talking about the cost
   of insurance and frivolous lawsuits ... driving
   those premiums sky-high out of the
   reach of hardworking men and women, we
   must respond.

There was more to come: The Frist speech was soon followed by the president's claim that lawsuits are increasing the federal budget deficit. On a January 26 visit to the Baptist Health Medical Center in Little Rock, Arkansas, Bush said:

   The direct cost of liability insurance and
   the indirect cost from unnecessary medical
   procedures raise the federal government's
   health care costs by at least $28 billion a
   year.... The cost of defensive medicine
   raises your bill as a taxpayer Medical liability
   reform is a national issue because medical
   liability lawsuits raise the federal budget.
   It's a national issue that requires a
   national solution.

The president chose not to mention that those billions of dollars represent only a tiny percentage of overall health care costs. That fact was highlighted, however, in a new report--Limiting Tort Liability for Medical Malpractice--issued in January by the U.S. Congressional Budget Office (CBO). According to the report,

   malpractice costs amounted to an estimated
   $24 billion in 2002, but that figure
   represents less than 2 percent of overall
   health care spending. Thus, even a reduction
   of 25 percent to 30 percent in malpractice
   costs would lower health care costs
   by only about 0.4 percent to 0.5 percent,
   and the likely effort on health insurance
   premiums would be comparably small.

New push for S. 11?

The renewed attention to the medical malpractice debate suggests that proponents of limiting jury awards may be getting ready to try again. A year ago, the I louse of Representatives passed H.R. 5, the so-called HEALTH Act, which would have imposed numerous tort restrictions. They included a $250,000 cap on noneconomic awards in medical malpractice and nursing home liability cases, as well as in products liability cases involving drugs and medical devices. In July, however, the Senate failed by a wide margin (12 votes) to end a filibuster against a largely identical bill, S. 11.

Evidently, backers of S. 11, including the president, want to give the Senate a second opportunity to pass malpractice tort "reform" this year. However, the Senate might not make a second attempt to advance a comprehensive bill like S. 11.

One longtime tort "reform" advocate, Senate Republican Conference Chairman Rick Santorum (Pa.), lamented recently that while it may not be "the best way to legislate," the Senate may have to give up on "trying to get a huge bill passed" and focus instead on the most "acute problems."

What does that mean? Congress Daily, a Capitol Hill newsletter published by the National Journal, offered a clue: On February 2, it reported that Frist said the Senate might focus on piecemeal medical liability restrictions, including bills dealing with obstetric care, emergency room care, and rural health care.

Undoubtedly, the CBO tort report will be a factor in any congressional debate on these proposals. Recently, Rep. Pete Stark (D-Cal.), a senior member of the House Ways and Means Committee, circulated a letter to his House colleagues, drawing their attention to the report.

"Claims from the administration and congressional Republicans that tort reform will cure the health-care cost crisis are without merit," Stark wrote. "Limiting malpractice liability will harm patients and, as the CBO report suggests, will do nothing to reduce the ever-increasing costs of health care." He urged his colleagues to read the report and "join me in the fight against this false promise of reduced health care costs through so-called malpractice reform."

KRISTIN LOIACONO is a media relations consultant for ATLA.