"So now that I've kissed your ass, what do I have to do to get a deal?" Bush asked Representative Charles Norwood at a July 26 meeting according to the Washington Post. The answer was not recorded, or at least not communicated to the news media. But the meeting began a week of negotiations that ended with Bush and Norwood announcing an agreement Wednesday, August 1, on provisions of the patients' bill of rights that the Republican leadership had stalled in the House. Among those surprised by the announcment were the bill's sponsors, Rep. Greg Ganske, Republican of Iowa, and Rep. John Dingell, Democrat of Michigan. According to Salon.com Norwood had promised Ganske and Dingell that he would consult before compromising with the White House. Marion Berry of Arkansas, with whom Norwood had scheduled a meeting during the time he was announcing his deal to the press, said ""I consider this a breach of a bipartisan effort that has been going on for years. That is unfortunate, because it means that we will not pass a patients' bill of rights through the Congress this year. Even if the House passes the compromise, the Senate will certainly kill it.... There was nothing bipartisan about the White House approach to this issue, which is a shame, because this has always been a bipartisan effort on our side."
Norwood's news conference was around 5:30 pm, and he set up a meeting for 7:30 to brief the co-sponsors of the House bill, and the leaders of the bipartisan effort in the Senate -- Senators Kennedy, Edwards, and McCain. A spokesman for Senator Edwards said later, "It became clear that this was just an agreement between Norwood and the White House. And Norwood is pretty fuzzy on the details," adding that Senator Edwards "thinks that it doesn't work."
From press accounts it appears Norwood was out-negotiated. The original Ganske-Dingell bill permitted patients to sue their insurers or HMOs in state court, with a $5 million cap on damages. Although Norwood successfully argued for a $1.5 million cap on damage awards from suing HMOs, he capitulated to Bush's insistence that patients only be permitted to sue once they had been approved by an outside appeals board. As reported in the Washington Post, Norwood wanted to discuss the deal with colleagues in the House, but Bush insisted they announce the deal to the press first. Norwood claimed he was acting to prevent a presidential veto, saying "The bottom line and goal is, we want to change the law. The last time I looked, that's pretty difficult to do without the presidential signature."
Bush, whose support for statutory limits on tort suits has been called his "sole legitimate claim to be a 'reformer with results" during his governorship of Texas, originally wanted a $500,000 cap on damages and a requirement that patient suits against insurers or employers take place in federal court. (A tort is a civil suit for injury, damage or wrongful acts, without breach of contract.) Historically state courts have been more likely to grant large punitive damage awards in tort suits. The damage limitations are significant given the high cost of medical care, and prevailing methods of calculating damages in wrongful death suits. For example, many insurers will not cover the cost of medical care for clinical trials, even if such treatment offers the best hope for a patient. A recent study co-authored by Dr. George Bosl of the Memorial Sloan-Kettering Cancer Center showed that clinical treatment is no more costly than standard treatment. Nonethless, cancer treatment can cost $30,000 to $40,000 for a six month period. Wrongful death damage calculations typically consider a victim's earning power at the time of death, years till retirement or expected death, and the resulting future loss of earnings. Damage calculations should also include losses that might reasonably incurred in the future. The amount is then reduced to the "present value" that would need to be invested to produce the total at a future point in time. Treatment costs and wrongful death damage calculations are both "compensatory damages," meaning that they are a calculation of what is necessary to restore lost value. Punitive damages may also be assessed, which are intended to punish the wrongdoer and deter similar actions in the future. It is to be expected that most damage awards will not reach the statutory maximum. With treatment costs so high, this could leave little for punitive damages, so providing negligible incentive for insurers and HMOs to act any differently than they do now.
Following the announcment of the agreement to the press, details initially were hard to come by, with neither Bush nor Norwood providing any. Ganske-Dingell supporters said Norwood has proposed the $1.5 million cap to House and Senate leaders of the patient rights initiative last week, but that it had been rejected by Kennedy, Edwards, and McCain among others. Their understanding was that Norwood and Bush intended to permit suits in state court, but require a higher burden of proof than in the original bill.
Ganske did not conceal his bitterness. "There are 800 groups that have endorsed our bill," he said. "And without even giving the other coauthors of the bill the benefit of a phone call, Charlie just went and potentially undercut us and these 800 groups." The New York Times reported other House members as saying that Norwood had been "duped into supporting a bill drafted by the White House when he did not even know what was in it. As the House debated the measure on August 2 and early in the morning of the 3rd, Minority leader Richard Gephardt said "Today we will vote on a bill that is just another example of a good idea that will be parked in the GOP junkyard."
A key amendment containing the compromise only passed because Democrats Ken Lucas of Kentucky, James A. Traficant Jr. of Ohio, Colin C. Peterson of Minnesota, and independent Virgil H. Goode Jr. of Virginia joined 214 Republicans in voting for it.
What follows is the roll call for the House vote on the patients' rights bill:
|ARKANSAS||Hutchinson (R)||Berry (D)
Gary Miller (R)
George Miller (D)
|NEVADA||Gibbons (R)||Berkley (D)|
|NEW HAMPSHIRE||Bass (R)
|NEW JERSEY||Ferguson (R)
|NEW YORK||Boehlert (R)
|NORTH CAROLINA||Ballenger (R)
|NORTH DAKOTA||Pomeroy (D)|
|OREGON||Walden (R)||Blumenauer (D)
|RHODE ISLAND||Kennedy (D)
|SOUTH CAROLINA||Brown (R)
|SOUTH DAKOTA||Thune (R)|
Sam Johnson (R)
E.B. Johnson (D)
Jo Ann Davis (R)
Tom Davis (R)
|WEST VIRGINIA||Capito (R)||Mollohan (D)
Tapper, Jake "Patients' rights double cross" Salon.com 2 Aug. 2001
Milbank, Dana and Juliet Eilperin "On Patients' Rights Deal, Bush Scored With a Full-Court Press"
Washington Post 3 Aug. 2001
Rosenbaum, David E. "How Norwood Shifted Position and Took a Majority With Him" NY Times, August 3, 2001
Goldstein, Amy and Juliet Eilperin "House Passes Patients' Rights: Bush-Norwood Deal Prevails, Setting Up Battle in Conference"
Washington Post 3 Aug. 2001
"Roll Call on House Patients' Rights Bill" Associated Press 3 Aug. 2001