Health care bill rests in moderate Democrats' hands

By Chris Rizo | Nov 21, 2009

Blanche Lincoln (D-Ark.)

WASHINGTON (Legal Newsline)—Months ago, the chief lobbyist for U.S. trial lawyers predicted that moderate Senate Democrats could be an obstacle to President Barack Obama's push for a national health care overhaul.

She was right.

The American Association for Justice's Washington lobbyist, Linda Lipsen, correctly said at her organization's national convention in July that Arkansas Sen. Blanche Lincoln could stymie the upper chamber's health care bill.

As of today, Lincoln is not expected to be one of the 60 votes -- equivalent to the entire Democratic caucus -- needed to begin formal debate on the proposed $848 billion health care overhaul offered by Senate Majority Leader Harry Reid, D-Nev.

Barbara O'Connor, director of the Institute for the Study and Politics and Media at California State University at Sacramento, told Legal Newsline that Lincoln "probably won't" support the plan.

"They are leaning all over her," O'Connor said Friday night of Lincoln, who is seeking a third term in November 2010.

Additionally, there have been questions as to whether Democrat Mary Landrieu of Louisiana will support the procedural vote to begin debate needed to prevent a Republican filibuster.

Sen. Ben Nelson, D-Neb., who had threatened to filibuster the bill, said on Friday he will vote allow the health care debate to begin. He said he is reserving final judgment on the bill until after floor debate.

"If you don't like a bill why block your own opportunity to amend it?" Nelson said, explaining his change of heart.

While Lincoln, Landrieu and Nelson each face conservative electorates back home, Lincoln faces a particularly tough reelection, political observers say.

"Arkansas is a state with a lot of older voters, and they are not going to be very happy if she supports a plan that a majority of voters have not embraced," Jennifer Duffy, who analyzes Senate races for the Cook Political Report, told The Christian Science Monitor. "It could become a brick in a larger message that she's gone Washington, voting with the Democratic Party and not Arkansas."

In her presentation before medical malpractice litigators in San Francisco, trial lawyers' Lipsen said other Democratic barriers could be Senate Finance Committee Chairman Max Baucus of Montana and Sen. Tom Carper of Delaware. But so far, they have not posed any danger to the sweeping 2,074-page health care bill.

Lipsen predicted also that once a Senate bill reaches the floor for debate there would likely be a range of amendments proposed, including legal reforms that her group vehemently opposes.

"Democracy is a great thing except on the Senate floor," she quipped.

On whether Obama would sign a health care bill that limits medical malpractice litigation, Lipsen said at the time that she expected the president to sign the bill, even amid trial lawyers' objections.

"If it looks moderate or modest even though you know it not to be, this president will sign it," Lipsen said. "It's health care reform."

Lipsen has a solid record of reading the tea leaves correctly. Also on that July day, she made a second correct prediction. She foretold that federal legislation to give a special $1.6 billion tax break to trial lawyers faced an uphill battle.

The proposal would have allowed plaintiffs attorneys to deduct fees and expenses up-front on their taxes for filing contingency-fee lawsuits. Legal expenses are currently considered loans to clients that are to be repaid from ultimate awards if they win or deducted on their income filings in the event of a loss.

Amid a loud outcry from critics who said the proposal would be an incentive for trial lawyers to file more lawsuits, the measure foundered.

Tort reforms absent

Surely to the delight of Lipsen and much to the chagrin of Republicans, tort reforms are absent from the Senate health care plan, which critics have called an unfair bundle of tax increases Democrats want to foist upon Americans.

The plan would expand insurance coverage to some-31 million uninsured Americans and bar insurance companies from denying coverage on the basis of pre-existing medical conditions, among other things.

It would also require most individuals to purchase health coverage either through their employer, on their own or through a public plan.
Business groups have criticized the Democratic leadership for not including in the legislation legal reforms.

"To truly reform the health care system, Congress must explore every means available to help reduce costs on the American public, including medical malpractice tort reform," Associated Builders and Contractors President and CEO Kirk Pickerel said Thursday.

An Associated Press poll released Thursday indicates that 54 percent of Americans say they would like to see it more difficult for aggrieved patients to sue hospitals and doctors over alleged medical malpractice.

The director of the nonpartisan Congressional Budget Office, Douglas Elmendorf, has said as much as $54 billion could be saved over the next 10 years if Congress enacts legal reforms including a $250,000 cap on damages for pain and suffering and a $500,000 cap on punitive damages and restricting the statute of limitations on malpractice claims.

Reid plan relies on tax increases

Reid's Patient Protection and Affordable Care Act would be bankrolled with a tax on employer-sponsored group health plans with premiums over $8,500 for individual and $23,000 for family coverage. His plan also calls for a 5.4 percent surtax on adjusted gross personal income exceeding $1 million for couples and $500,000 for individuals.

Reid also wants to collect a new 5 percent tax on elective cosmetic medical procedures as well as charge annual fees to insurance companies and manufacturers of medical devices and brand-name prescription drugs.

The pending draft Senate plan -- opposed by the chamber's 40 Republicans -- would increase Medicare payroll taxes by one-half percent -- to 1.95 percent -- for individuals earning more than $200,000 or couples earning more than $250,000.

House, Senate Plans to merge

The expansive House-approved plan championed by House Speaker Nancy Pelosi, D-Calif., and the health care bill that is expected to be passed in the Senate will be merged in conference committee before a final bill goes to the president, who has made health care reform the cornerstone of his domestic policy agenda.

The $1 trillion House-approved plan would extend coverage to about 36 million uninsured Americans, and also bar insurers from denying coverage and prohibit the insurance industry from charging higher premiums to consumers with a preexisting condition.

Both the Senate and House bills also contain a public insurance option, which proponents say is aimed at injecting more competition into the marketplace. Under the Senate plan, states would have the ability to opt out of the public option.

To pay for the coverage expansion under the House bill, that chamber's legislation calls for, among other things, a 5.4 percent surtax on individuals making more than $500,000 a year or families earning more than $1 million and a 2.5 percent excise tax on medical services or devices. The taxes would raise an estimated $460 billion over 10 years.

From Legal Newsline: Reach staff reporter Chris Rizo at

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