August 1, 2017 at 6:26 AM
For two years, lobbyists for doctors and their insurers met regularly around a conference table a few blocks from the Capitol to draft an overhaul of the nation's medical malpractice laws. The resulting legislation proposed strict limits on damages for some plaintiffs and sharply lower fees for their attorneys.
Last month, with no public hearings and few modifications, the House voted to approve the measure — outraging victims' rights advocates, who accused lawmakers of acting in secret to slam the courtroom door on people who have been grievously injured by doctors.
It isn't unusual for industry stakeholders to draft legislation. But in this case, lobbyists were able to rapidly shepherd their bill to House passage with minimal input from the public or even members of Congress. Lobbyists then crowed about the achievement, boasting that the House-passed measure was nearly identical to one they provided to the House Judiciary Committee and that Rep. Steve King (R-Iowa) introduced on Feb. 24.
"There wasn't a dramatic change in how we wrote it," said Mike Stinson, a lobbyist for the Physician Insurers Association of America. But, he added, "there are always some tweaks."
With Republicans in full control of Washington for the first time in 10 years, lobbyists for business and conservative causes are pushing aggressively for changes in laws and regulations long resisted by Democrats. After just six months, they have scored dozens of victories. In February, Trump signed a measure, championed by the National Rifle Association, that rolled back Obama-era rules making it harder for people with mental illnesses to buy guns. In April, Trump signed a bill, backed by large Internet providers, that killed rules blocking the companies from selling consumers' browsing histories to third parties.
Leaders of a coalition of doctors and their insurers say their odds of overhauling the nation's medical malpractice laws have also greatly improved. Trump's health secretary, Tom Price, is a former congressman and orthopedic surgeon who has long complained that frivolous lawsuits are driving up the cost of health care. And GOP leaders in both the House and Senate have cast medical malpractice reform as a key part of their strategy for making health care more affordable.
Since passing the House, the measure has stalled in the Senate, traditionally more hostile territory. However, doctors and their insurers held out hope that last month's collapse of a broader GOP campaign to overhaul the Affordable Care Act would persuade Senate leaders to look to the medical malpractice bill as a surer path to victory.
The failed Senate bill to rewrite the ACA was also drafted without public hearings. Norman J. Ornstein, a nonpartisan ethics scholar with the right-leaning American Enterprise Institute, said Republican lawmakers are becoming increasingly willing to act with little or no public debate. At the same time, Ornstein said, lobbyists are becoming increasingly vocal about claiming credit for their political victories.
"This is a reflection of the new Trump, in-your-face era," said Ornstein, who has written numerous books on Congress. "The way it's supposed to work is you meet with outside groups that would be affected by it. You hold hearings, but you write the bills."
Legal experts, former members of Congress and former Hill staffers say it is rare for a bill to move through a chamber virtually unchanged — and rarer still for a bill as complicated as tort reform to proceed with no public hearings, where victims' rights groups, trial lawyers and others would have had a chance to weigh in.
Democrats said the speed and secrecy of the process favors special interests.
"Large business groups are writing these bills," said Rep. Hakeem Jeffries (D-N.Y.). "This has got to stop."
King, the lead sponsor of the medical malpractice bill, acknowledged that the industry provided a draft of the bill and helped craft the final version. But he said his "very talented staff" also played an important role.
As for the lack of hearings, King said Congress has scrutinized the medical malpractice system on dozens of occasions.
"I hear their complaints," King said of critics. But, he added: "I just don't want to have to ride that horse again. Let's get 'er done."
Some Republicans have long backed tort reform as a way to drive down medical costs. The measure that passed the House would make it more difficult for people to sue doctors and, in some cases, to collect large awards. The bill would set a federal cap of $250,000 for non-economic damages, which offer compensation for such things as pain and suffering, permanent disfigurement or other serious disabilities that may not interfere with the ability to work.
The bill would force states to set caps, or submit to having the federal standard imposed on them — even in states where supreme courts have ruled caps on non-economic damages unconstitutional.
"Some of these state supreme court rulings are bad rulings," King said, adding that his staff made changes to the legislation that added "important nuances" to address the rights of states.
Stinson, the lobbyist for the Physician Insurers Association of America, a trade association for medical malpractice insurers, said the coalition presented the measure to the House Judiciary Committee shortly after Trump's inauguration. Weeks later, King introduced his bill.
Just four days later, on Feb. 28, the Judiciary Committee passed the measure.
And on June 28, the measure passed the House 218 to 210, with 19 Republicans and 191 Democrats voting no.
"We still had a few things we were tinkering with, but with this opportunity, obviously we couldn't delay anymore," Stinson said.
Added Katie Orrico, the coalition's vice chair and lobbyist for the American Association of Neurological Surgeons and the Congress of Neurological Surgeons: "Ultimately, they ran with it. It moved fast."
In the days and weeks before the House vote, at least three members of the coalition took public credit for their role in drafting the legislation. On May 11, Brian Atchinson, chief executive of the group Stinson represents, said in a webinar that the bill was something his team had "in fact, helped Hill staff draft."
And in a June 23 newsletter to members, the Doctors Company — the nation's largest physician-owned medical malpractice insurer — said its group and other members of the coalition "worked to draft new federal medical liability legislation."
Stanley Brand, a Washington-based lobbyist who served as general counsel to longtime Democratic House speaker Thomas P. "Tip" O'Neill Jr., said such public pronouncements by lobbyists are relatively new.
"Look, when I worked for Tip O'Neill, the definition of a good lobbyist was like a German U-boat — they only come up at night for air," Brand said. "They didn't speak publicly about the role they played in a bill."
Members of the medical malpractice coalition defended their actions.
"I don't think any of us would want to live in a society where all laws are imposed by regulators, a judge, a congress, a president," said Richard E. Anderson, chairman and chief executive of the Doctors Company. "We want to live in a society where the laws meet the needs of those they are meant to govern. Ideally, it should be a collaborative process in the context of the overall national interest."
Stinson, who served for more than a decade as a Republican staffer on the Hill, said those who criticize the role of lobbyists don't understand how Washington works.
"Staff and members can't be fully versed on every single issue that is coming up," he said. "Interest groups approach them, and say here is a problem that needs to be resolved, here's the legislation that we think can take care of it. That's often how it happens."
Alice Crites contributed to this report.
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