Rep. Anna Eshoo caught between powerful lobbies in medical liability debate
Bay Area Congresswoman Anna Eshoo (D-Calif.), who served on the House Energy Subcommittee on Health until the start of the current congressional session, received a combined $147,900 in campaign contributions from both health care professionals and defense attorneys between 2009 and 2010. These groups stand on the opposite sides of a debate over medical liability law, which has been waged at both the state and federal levels for more than three decades.
Doctors’ groups are intent on one specific political goal, lowering the costs and possible awards in medical malpractice liability lawsuits. Fighting against them have been well-organized lawyers’ groups, advocating for maintaining the current rules.
Eshoo, like many of her colleagues in Washington, is often conflicted when it comes to particularly contentious issues and caught in the crossfire of powerful and wealthy organizations that wish to gain influence through campaign contributions.
Views on this issue generally split along party lines. Republicans generally advocate for the doctors, while Democrats side with the lawyers. And despite large amounts of spending by the doctors’ groups over the last few decades, little has changed at the federal level.
But since President Obama gave this year’s State of the Union Address, it appears that the political polarization that has defined this issue may be changing.
“Health insurance reform will slow these rising costs [of health care], which is part of why nonpartisan economists have said that repealing the healthcare law would add a quarter of a trillion dollars to our deficit,” Obama said. He added, “Still, I’m willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical-malpractice reform to rein in frivolous lawsuits.”
Congresswoman Eshoo said she is willing to consider what she believes is in the best interests of her constituents. In an email, she wrote, “I support changes to our medical liability system that will lower healthcare costs, protect patients, and allow physicians to continue practicing good medicine without the constant threat of lawsuits.” She noted, “In the health care reform bill, I supported funding for states to develop medical malpractice reforms designed to keep frivolous lawsuits out of court.”
It took the new Republican-controlled House of Representatives less than three weeks to introduce a bill calling for the restructuring of rules on medical liability lawsuits. Republicans say H.R. 5, the Help Efficient, Accessible, Low Cost, Timely Healthcare Act of 2011, offers comprehensive change to the system, which doctors groups have claimed costs taxpayers billions annually.
If enacted, the bill, would limit attorney compensation and allow for periodic payment of future damages in some cases. It would also establish a rule that would make each party in a lawsuit liable only for the damages of that party. It would shorten the statute of limitations to three years after the proof of injury date.
Eshoo, who has not spoken publicly regarding the bill, has received over $500,000 from healthcare professionals and over $400,000 from lawyers and law firms over her career in congress. Last year, she was elected to a tenth term in the house.
But in the email, Eshoo did voice concerns on this proposed law. “This legislation misses the mark. Instead of incenting best practices and following the recommendations of numerous experts who’ve weighed in on this issue over the years, this bill imposes arbitrary caps on patient damage awards, regardless of how egregious the mistake. I think we can and should do much better.”
The bill remains in committee.
Among Eshoo’s most prolific donors through her career in congress are the American Medical Association, which represents doctors, and the American Association for Justice, which represents trial lawyers.
However, Eshoo wrote, “I have voted against issues that some contributors support and vice versa. In 28 years of public service, my reputation has been one of doing what’s best for all my constituents, not just some.” Eshoo’s voting record in Congress shows that she voted with her Democratic colleagues 99 percent of the time in the last congressional session.
Common Cause, a nonpartisan citizens’ advocacy group, fights for the limitation of campaign contributions that will affect policy. The organization’s website notes, “The problem is not so much the amount we spend on political campaigns as it is who pays for them, what they get in return, and how that affects public policy and spending priorities.”
The website goes on to say, “The sense that members of Congress are ruled by their large campaign donors is reinforced by the amount of time members spend fundraising. A recent study pegged this amount at 34 percent, or more than a third of their time. Fundraising pressure continues to mount on lawmakers.”
In the lead up to the 2010 healthcare reform act, Eshoo’s campaign received donations from doctors’ groups representing several specialties including dermatology, neurology, oncology and orthopaedic surgery. Many of these groups hoped that the interest of doctors could be served by the legislation, which ultimately passed without any new provisions regarding the rules on medical liability lawsuits.
Former president of the American Academy of Orthopaedic Surgery, Dr. Stuart Weinstein said, “The costs of health care are really driven up by defensive medicine, where physicians order tests to assure themselves that they haven’t missed something. The number one lawsuit is for ‘failure to diagnose.’ You, as a physician, can’t afford to miss anything.”
Weinstein currently chairs the political action committee for the academy. He claimed that financial burden on the American health care system that can be attributed to medical malpractice litigation has been estimated to be between $50 billion and $650 billion annually. The American Medical Association estimates that the defensive medicine adds between $84 billion and $151 billion annually to the costs of healthcare.
Nevertheless, these groups are quick to point out that their political aspirations go beyond just adjusting medical liability law.
Allison Sit, spokeswoman for the American Academy of Dermatology wrote in an email, “There are a number of issues that impact our members and patients, including health system reform, physician payment, medical liability, research funding, workforce, and many others.” In both 2008 and 2009, the political action committee of the American Academy of Dermatology gave Eshoo $1,000.
Echoing Sit, Weinstein, whose organization donated $2,000 to Eshoo in both 2008 and 2009, said, “We make contributions to members of Congress who support our issues and realize the importance of this issue as well as others. It’s important as far as the ability to have our voice heard. We think it’s a very important aspect of American political life.”
The American Association for Justice, the leading organization representing trial lawyers, is ardently opposed to what it believes is an attempt by doctors to dodge responsibility in the event of an error. In a press release, American Association for Justice President Gibson Vance said, “Eliminating legal accountability destroys any incentive to focus on the real problem – preventable medical errors and patient safety.”
The lawyers group believes medical errors account for nearly 100,000 deaths annually. By their estimates, medical malpractice is the sixth leading cause of death in the United States each year. The organization’s political action committee has donated $68,500 to congresswoman Eshoo over the course of her congressional career.
In a document published by the association in 2009, the group argues, “The accountability promoted by the civil justice system is the engine of patient safety. No other mechanism or proposed alternative encourages accountability as effectively as the civil justice system.” Contrary to the beliefs of the medical associations, the American Association for Justice believes that changing the laws in regards to medical liability will drive up healthcare costs.
While some states, including California, have addressed medical liability at a local level, doctors’ groups believe that national legislation is the only way to truly solve the perceived problem. Weinstein said, “There have been some successes at the state level, but, because the state level often falls under a constitutional net, we feel very strongly that we should tread at the federal level.
“President Obama has said this is a problem,” he added. “The question is, will the Democratic Party realize that this is an issue and address it.”