Effort to curb malpractice awards runs into one of most skilled special pleaders

August 08, 1994|By Karen Hosler | Karen Hosler,Washington Bureau of The Sun

WASHINGTON -- Lobbyist Thomas H. Boggs Jr. pulled off last week another of the deft moves that have earned him the reputation of being one of the best in town at what he does.

Mr. Boggs, the top special pleader for the nation's trial lawyers, not only broke the momentum of a campaign by doctors to enact federal limits on money awarded in medical malpractice cases. He also went one giant step further.

Maneuvering behind the scenes, Mr. Boggs won language in House and Senate versions of health care reform that threatens to overturn state limits on malpractice awards that have existed for years in Maryland and 20 other states.

"It was so greedy, so overdone, so invasive of the prerogatives of 50 years of state law in this area, I was astonished," said Frederick H. Graefe, who lobbies opposite Mr. Boggs on behalf of the doctors, hospitals and insurance companies that seek federal help in cutting their losses in malpractice cases.

Mr. Graefe was also unabashedly in awe of his competitor.

This is a classic example of how Washington works, a tale of how a well connected insider -- the son of two former members of Congress who helps distribute millions in campaign contributions to friendly lawmakers -- can run a legislative train right off the tracks.

Consumer advocates tend to side with lawyers because lawyers give patients recourse against physicians whose incompetence can ruin lives. But some patients are also the victims of lawyers whose fees claim up to 50 percent of awarded damages or who won't take cases if there isn't enough money in it for them.

Doctors are not without money and influence, either. The American Medical Association has anted up nearly $1 million for the 1994 elections, about equally divided between Republicans and Democrats. That's nearly as much as the Association of American Trial Lawyers of America, which Mr. Boggs represents, gave, mostly to Democrats.

The intrigue isn't over yet. House Majority Leader Richard A. Gephardt hinted Friday that he is likely to undo some of Mr. Boggs' handiwork next week before the final version of his bill goes to the full House.

"They went too far," a House leadership aide who is working with Mr. Gephardt, a Missouri Democrat, said of Mr. Boggs' move to overturn the state limits on malpractice awards along with wiping out the proposed federal limits.

Imperiled is one of the leading cost controls in the proposed health care legislation. One measure of the potential savings is that freeing doctors from the risk of multimillion-dollar damage suits could curb excessive testing and save an estimated $4 billion a year.

Of greater concern in Maryland is the potential loss of an 8-year-old malpractice limit that has restored stability to the insurance industry after a crisis threatened to end the practice of high-risk medicine in the state, said Jay Schwartz, chief lobbyist for the Medical and Chirurgical Faculty of Maryland.

Mr. Boggs is trying to play down his deeds at this delicate juncture. He said through a spokesman that reports of his accomplishments are exaggerated. "This is just lawyer-bashing that doesn't have anything to do with the facts at all," said Roger Balentine, an associate of Mr. Boggs at the Washington law firm Patton, Boggs and Blow.

Maybe so, but Rep. Vic Fazio, a California Democrat who is vice chairman of the House Democratic Caucus and whose state could see 20 years of medical malpractice reform wiped out, is worried. "I think it may be a case where the best defense is a good offense," Mr. Fazio said.

But Mr. Fazio, a beneficiary of the trial lawyers' campaign contribution largess, was loath to attribute the recent developments entirely to Mr. Boggs. He said the maneuver also was the product of lawmakers' "bias" toward the legal community.

The facts of the case are these:

President Clinton, a former law professor who has also been associated with the trial lawyers association, violated the association's wishes and included a section on malpractice reform in his proposed overhaul of the health care system.

His proposal wasn't as strong as doctors had hoped. It limited lawyers' fees to one-third of the total award, about the average today. And it set no limit on the money awarded for "pain and suffering" in addition to actual expenses.

But for Mr. Clinton to advocate allowing Washington to intrude in this area at all was a setback to Mr. Boggs, who had been successfully fighting such legislation for 20 years. And it was galling to high-powered Democrats such as Rep. Jack Brooks, the Texas Democrat who is

chairman of the House Judiciary Committee and a leading advocate for trial lawyers.

Nor is Senate Majority Leader George J. Mitchell of Maine a fan of curbs on liability awards.

In March, doctors won a victory in the House Ways and Means subcommittee on health, which drafted the basis of what is now the House Democratic proposal on health reform.

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