AHIP Begins ‘Shark’ Attack on Trial Bar

Posted March 25, 2005 at 5:55pm

America’s Health Insurance Plans today kicks off a bristly lobbying and advertising campaign that’s designed to propel medical malpractice legislation to the forefront of Congress’ agenda.

The group is blanketing the backsides of city buses and walls of Metrorail stations with ads that feature wide-open skeletal shark jaws — a none-too-subtle slap at plaintiffs’ attorneys, whom AHIP blames for “lawsuit abuse.”

And next week, when Congress returns to Washington, AHIP will air 30-second television ads complete with foreboding music, saying, “It’s time for Congress to stop lawsuit abuse. Because until they do, it won’t be safe for anyone to go back into the water.”

AHIP’s opponents say the ads are merely an attempt to divert the debate from injured patients and greedy insurance companies to lawyers.

“When you have no facts on your side, often people indulge in histrionics,” said Carlton Carl, spokesman for the Association of Trial Lawyers of America. “The insurance industry and its lobbyists are attacking lawyers, but their real targets are the hundreds of thousands of Americans who are injured.”

The question remains: Will aggressive lobbying efforts and a salty advertising campaign do anything to help win medical malpractice legislation the necessary 60 votes in the Senate?

ATLA’s Carl, for one, says no.

One Republican lobbyist agrees, saying, “It is my strong sense that the Senate leadership is committed to having a vote, but it won’t pass.” Senate Democrats, this lobbyist said, can say that they’ve already complied with two priorities of big business and the GOP — bankruptcy and class-action reform — and “that’s enough. We’re pulling up the drawbridge.”

Still, AHIP and other groups who back medical malpractice legislation say they won’t be satisfied with that response.

AHIP, which represents health insurers and HMOs, along with a large coalition has supported restraints on medical lawsuits for years. But doctors’ groups such as the American Medical Association, which counts medical liability legislation as its No. 1 priority, have taken a lead in calling for reform.

But this time, AHIP is the only group that has signed on to the ad campaign. It plans to release some of its own sharks on Capitol Hill, including AHIP President Karen Ignagni, top lobbyist Scott Styles and a team of outside consultants.

ATLA, for its part, has a formidable lobbying team too, including in-house lobbyist Linda Lipsen and an outside roster that includes advocates from Patton Boggs, the city’s biggest lobbying firm.

“We’re trying to raise awareness to the systemic problem and hoping to build support for Members of Congress who are willing to step up,” said Ignagni. “Back in January, we mapped out the legislative calendar and began to plot out where we thought Congress would be. We think the timing is right.”

Senate Majority Leader Bill Frist (R-Tenn.) has recently signaled that he is willing to look at options and possible compromises that could push the legislation through. Lobbyists working the issue say that move, in part, comes after hearing from doctors who have taken on a desperate tone.

Supporters of a medical malpractice overhaul want to move their bill before judicial nominations crop up. The bitter fight over nominations could throw the Senate into chaos, potentially freezing all legislative business in the chamber.

Medical liability legislation, which has easily passed the House repeatedly, has languished in the Senate.

At the heart of the issue is a desire by doctors and insurers to set caps on certain types of jury awards for patients harmed by doctors. Legislation proposed in the House and Senate is modeled after a longtime California law that caps at $250,000 so-called non-economic damages — those to compensate for pain and suffering rather than for lost wages or medical care.

Doctors and insurance groups say the caps would lead to lower malpractice rates and, in turn, lower medical bills for patients. But many consumer advocates say that such legislation would protect doctors from getting sued and leave injured patients in the lurch.

“We don’t believe in caps,” said Sally Greenberg, an advocate at Consumers Union. “We think caps are irrational, and they take away from juries the ability to decide each case on a case-by-case basis.”

The Consumer Federation of America’s Bob Hunter said that periodic spikes in doctors’ malpractice-insurance rates are not caused by lawsuits but are instead tied to the bond market, in which the malpractice insurers invest heavily.

“It isn’t the legal system that is causing these periodic spikes — it’s the insurance system,” Hunter said.

Mark Behrens, a partner at the law firm Shook, Hardy and Bacon and a longtime pro-tort reform lawyer and lobbyist, said that “it’s too simplistic to think one thing will control costs, but a series of things will. And a cap might be the most significant in those series of things.”

Another sticking point for the two sides is that the proposed legislation would cap damages for more than just doctors. It would also apply to hospitals, pharmaceutical companies, medical-device companies, nursing homes and HMOs like Ignagni’s constituents.

It’s possible that doctors might be willing to make a compromise by supporting a bill that only protects them, but other health care lobbies, such as AHIP, fear such an outcome.

Tort reform proponents, in general, say that if doctors dried up as a source of income, plaintiffs’ lawyers would go after deep-pocketed HMOs and pharmaceutical companies, among others.

“The bottom line is, you should not have separate rules for one defendant from another,” said Sherman Joyce, president of the American Tort Reform Association. “We don’t talk about medical malpractice, we talk about health care liability reform,” he said.

And that has broad support from the business community.

Local businesses “really see the economic impact when you have essential health care services leaving the state,” said Kate Sullivan, director of health care policy for the U.S. Chamber of Commerce lobbyist. “You can’t have a growing community if you can’t have babies being delivered.”

Of course, the other side has been running ads of its own. When the AMA had some of its doctors visit Washington earlier this month to lobby Congress on medical liability, USAction and a coalition that includes Public Citizen and the Center for Justice and Democracy, took out ads in several publications, including Roll Call and USA Today.

“We wanted the doctors who were in town, as they got their free USA Today newspaper, to see the ad,” said USAction’s Helen Gonzales.

The theme of AHIP’s shark campaign resurrects a similar effort the insurance and HMO industry mounted during debate over the Patients Bill of Rights. Mark Goodin, who runs Strategic Communications and represents AHIP, came up with the idea. “There are few things in life as scary and predatory as a shark,” he said.

Said ATRA’s Joyce: The ads “are very provocative.”