Patients' rights rise in Senate

It's being called a test case for the new balance of power in the nation's capital.

How the White House and the Senate work together - or don't - on a patients' bill of rights will speak volumes about the unfolding relationship between the new Republican president and a Senate suddenly controlled by the opposition.

Although managed-care reform was on candidate Bush's list of campaign promises, it wasn't high on his list, and it didn't make the first cut of priorities on President Bush's agenda either. But it is of keen interest to the new Democratic Senate majority leader, Tom Daschle, who has made it his top priority and is bringing it to the floor for debate tomorrow.

The very move by the Senate to take up patients' rights, as opposed to the president's preferred agenda, is itself an illustration of a shift in power here - with the White House reacting to, instead of leading on, the issues.

"Instead of having the energy bill on the floor right now, or trade promotion authority on the floor right now, we're going to have the patients' bill of rights," says a senior administration official, acknowledging that Democratic control of the agenda is an "important" change from the "old regime."

"The Democrats can not only take an issue which Bush did not want to bring up at the moment, and bring it up, they can bring it up on their terms," says Norman Ornstein, a political analyst at the American Enterprise Institute here.

"It means that the White House and Republicans are on the defensive," he adds.

What makes this issue especially interesting - and the reason it is a test for both ends of Pennsylvania Avenue - is its contentious nature, even though the key players support the overall concept.

Both parties agree, for instance, that patients covered by the much-maligned health-maintenance organizations (HMOs) should have access to emergency care and medical specialists, as well as have recourse for disputes by seeking independent medical review of their cases.

How much can patients sue?

But one issue separates Senator Daschle from Mr. Bush, and it plays to the worst stereotypes of Democrats and Republicans. Judged by the rhetoric, this issue comes down to the party of the trial lawyers versus the party of big business, as the two sides take unflinching positions over the right of patients to sue their HMOs.

The bill that Daschle and Democrats are pushing - a bipartisan effort led by Democratic Sens. Edward Kennedy of Massachusetts and John Edwards of North Carolina, as well as Republican maverick John McCain of Arizona - would allow patients to sue their HMOs in state or federal court for unlimited amounts related to medical expenses. It caps punitive damages at $5 million.

The bipartisan bill backed by Bush - and fashioned by Republican Sen. Bill Frist of Tennessee and Democrat Sen. John Breaux of Louisiana - would limit suits to federal court and cap punitive damages at $500,000.

The senior administration official calls the Kennedy-Edwards-McCain bill "written by trial lawyers, for trial lawyers." He sees a surge in litigation that will drive up healthcare costs and reduce access to care and insurance. The president has promised to veto the bill if it doesn't change.

Conversely, Democrats say the Breaux-Frist bill is heavily tilted toward providers, leaving patients no leverage to enforce their rights.

According to a June 10 Gallup poll, Americans favor a patients' bill of rights, but it's not their most burning concern.

They rank it the fourth most important issue facing Congress and the White House, behind education (No. 1), a prescription drug benefit (No. 2), and increased energy conservation (No. 3).

The power of lobbying groups

But James Thurber, a government expert at American University here, says the lobbying groups behind patients' rights are perhaps even more consequential.

"There are very strong interest groups behind this issue that are probably more important than what voters think," says Mr. Thurber.

"The lawyers have funneled millions over the years, and the providers have funneled millions," he says. "What we've got is a stealthy battle of interest groups behind the scenes, and then the question is how much can Democrats and Republicans compromise with the interest groups - not with each other."

As of last week, the White House and the Kennedy-Edwards-McCain trio had not reached agreement on the liability issue, although there was a glimmer of hope.

Senator McCain, and others, suggested - and agreed - that the debate proceed along the lines of March's Senate debate on campaign-finance reform. That involved wide-open discussion in which anyone could bring an amendment, and it forced compromise.

Says McCain spokeswoman Nancy Ives: "It worked before; let's try it again."

(c) Copyright 2001. The Christian Science Monitor