New Jurisdictional Fights Loom for Health Care

Posted September 15, 2009 at 6:16pm

The Senate Finance Committee’s health care negotiators are headed for a clash with Senate Judiciary Chairman Patrick Leahy (D-Vt.) if they attempt to mark up language in a health care reform bill to curb medical malpractice lawsuits.

But several Democrats indicated Tuesday that Finance Chairman Max Baucus’ (D-Mont.) foray into Judiciary territory may be for naught, considering Democratic leaders are only willing to put lawsuit limits in a health care bill if it draws firm commitments from Republicans to support the measure.

Baucus has been entertaining the notion of including such curbs in the bill he has been crafting with a bipartisan gang of six Finance Committee members, but only one of the group — ranking member Chuck Grassley (R-Iowa) — also sits on Judiciary, which has jurisdiction over the thorny issue of tort reform.

Asked Tuesday whether he was troubled by the ongoing negotiations in the Finance panel, Leahy asserted his committee primacy on the issue.

“Two issues have been raised — medical malpractice and doing away with insurance companies’ antitrust exemption. Both of those would be taken care of in Judiciary,— he said.

Baucus declined to answer a question about whether he would attempt to include the gang of six’s medical malpractice language in his bill, which he is expected to unveil today.

“Well, you’ll see the mark when you see it,— Baucus said.

But a senior Senate Democratic aide said that the territorial Baucus must be fully aware of the minefield he could be walking into.

“It would be appropriate for Sen. Leahy to take the lead on this,— the aide said. “And Sen. Baucus, who is a stickler for adhering to committee jurisdiction, should understand that.—

One senior Democratic source said Baucus has endeavored to solicit Judiciary’s input in the bill. “They’re talking,— the source said.

Curbing medical malpractice lawsuits has long been a GOP priority; President Barack Obama signaled during last week’s joint address to Congress that he is willing to consider including such language in any health care reform measure.

[IMGCAP(1)]Senate Majority Whip Dick Durbin (D-Ill.), who also sits on Judiciary, said Finance’s current plan to fund state-based “demonstration projects— is on track with what Obama has already authorized Secretary of Health and Human Services Kathleen Sebelius to begin implementing. However, he said the issue would likely have to be taken up by Judiciary if it got more complex.

“I think when it gets into more specific questions about [financial compensation] for pain and suffering, new [medical] court systems, that goes way beyond the Finance Committee’s jurisdiction,— Durbin said.

However, many Democrats said they are not sure the issue will ever actually come to a head, because Obama’s entreaties have yet to entice a single Republican to even consider voting for the overall health care reform package Democrats are putting together.

Judiciary member Sheldon Whitehouse (D-R.I.) said he was not concerned about the Finance group’s leap into Judiciary’s territory, and he indicated he is not yet convinced medical malpractice reforms will ever make it into a final health care measure.

“It’s so far away from legislative language, and it’s so far away from an agreement at this point that I think it’s premature to get upset at a Finance negotiation talking point,— Whitehouse said.

The senior Senate Democratic aide said Democratic leaders do not even expect the health care bill to deal with medical malpractice, unless a Republican promises to vote for the bill.

“It’s a moot point until a Republican steps up to the plate and says, ‘There’s a good chance you have my vote with this in there,’— the aide said.