New Senate boosts hope for medical liability reform

February 1, 2005

Washington--There's an outside chance that urologists tired of fighting for medical liability reform in efforts to reduce their insurance rates could end up benefiting from the work of a surgeon who became a politician and is determined to get some federal judges confirmed by Congress.

Washington-There's an outside chance that urologists tired of fighting for medical liability reform in efforts to reduce their insurance rates could end up benefiting from the work of a surgeon who became a politician and is determined to get some federal judges confirmed by Congress.

What does confirming judges have to do with getting lawsuit reform legislation passed? It's all about the filibuster.

Time after time, the House of Representatives has approved legislation that would limit medical liability awards for non-economic damages only to have the hard-fought bills die in the Senate, victimized by filibusters-usually launched by Democrats. Senate rules require a "super majority" of 60 votes to close a filibuster down.

Today, Daschle is back home in South Dakota, having been defeated in his bid for re-election, and there are more Republicans now in both the House and Senate.

Perhaps even more important, however, is the fact that Senate Republicans gained four seats in the November elections, enlarging their majority to 55 versus 45 Democrats and putting them closer to that 60 votes needed to break filibusters. The seven new Republican members include a core of fiscal and social conservatives moving from the House, most of whom can be expected to support tort reform.

Now comes Senate Majority Leader Bill Frist, MD (R-TN), a heart transplant surgeon, who knows the impact skyrocketing medical liability insurance rates can have on a medical practice. He has repeatedly emphasized the importance of getting medical liability reform legislation passed.

Dr. Frist also wants to change the Senate's filibuster rules in order to prevent Democrats from blocking President Bush's nominees for federal judgeships. Theoretically, that effort could benefit the drive to medical liability reform, should it be extended beyond the narrow purpose of confirming judges.

"Senate rules and procedures have been shaped and molded throughout the body's history," Dr. Frist said during recent remarks at the Federalist Society 2004 National Convention in Washington. "They're not set in stone. They can be changed to fit the governing climate, to respond to emerging needs, and to restore vital constitutional traditions."

Dr. Frist has tried to reform the filibuster rules before-as recently as May 2003 when he and Sen. Zell Miller (D-GA) were joined by every member of the Republican leadership to propose a way to end debate and move to an up-or-down vote on nominations. Simply put, they proposed reducing from 60 votes, to 57, to 54, then 51, and finally a simple majority as repeated attempts are made to break a filibuster.

However, there was a problem. Their proposal to end the filibuster sat on the Senate calendar for a year and a half, facing a filibuster by those who opposed. A similar fate can be expected to meet this year's efforts, unless proponents are able to convince at least five Democrats to approve-and unless all of the 55 Republicans hold firm.