WASHINGTON — The Democratic-controlled Senate voted Tuesday to leave the door open to lawsuits against employers in patients’ rights legislation, brushing aside predictions that the result would be canceled insurance coverage for millions.
On a vote of 57-43, the Senate killed a Republican proposal to ban suits against businesses. At the same time, bipartisan negotiations continued toward a compromise that would sharply limit such legal action.
The vote marked a victory for backers of the bill on the first key test of strength. The legislation, advanced by Sens. Edward Kennedy, D-Mass., John Edwards, D-N.C., and John McCain, R-Ariz., was crafted in response to HMO horror stories of health care delayed or denied, often with disastrous results.
The Senate acted as President Bush called key senators in what his spokesman described as an intensifying effort to reshape the measure to the president’s liking. Bush “thinks patients need and deserve protections” from their HMOs, said Ari Fleischer.
But in words that recalled a formal veto threat issued last week, he added that “the president hopes that the Senate will put progress first and not ... participate in an exercise that leads to a bill that will go nowhere.”
Democrats made patients’ rights legislation their top priority when they gained a Senate majority last month, and the debate, now in its second week, is unfolding against a backdrop of campaign-style public events and dueling public opinion polls.
At one news conference on the Capitol grounds, an opponent paraded in a shark costume, complete with fins and huge teeth, designed to represent trial lawyers.
Democrats circulated a survey during the day indicating that the bill’s supporters are on safe political ground. “HMOs and health insurance companies are almost as disliked as oil companies,” it said, with favorable ratings in the range of 22 to 34 percent.
Democrats were offered “talking points” for public use, including, “HMOs should not have special protection from lawsuits like foreign diplomats. HMOs should be held accountable just like any other American business.”
On the other side, a survey taken over several days for the American Association of Health Plans reported that, “By a large margin, voters continue to say trial lawyers will be the biggest beneficiaries of new lawsuits against health care plans and employers.”
The liability issue has emerged as a leading point of contention, particularly since several years of fiercely political debate have produced broad agreement on the type of protections that patients should be offered.
While the measure would leave employers open to suits in some circumstances, Senate Republicans offered a proposal to shut the door.
“Many are concerned that the employers would be forced to drop their health insurance” if the provision stands, said Sen. Phil Gramm, R-Texas, who proposed adding a provision found in Texas state law that prohibits employers from being sued in patients’ rights disputes.
Edwards countered that Bush has said that employers who retain responsibility for final medical decisions should be subject to lawsuits. “The HMOs have had the law on their side for too long,” he said.
Republicans argued that Democrats were saying one thing, and writing legislation to do another.
Sen. Don Nickles, R-Okla., citing comments Edwards made in an interview earlier this month, said the North Carolina lawmaker had said “employers can’t be sued.”
“But employers beware. If you read the bill, they can be sued,” Nickles said.
Gramm’s amendment drew the support of 43 Republicans and the opposition of 50 Democrats, six Republicans and one independent.
Even before the vote, senators were discussing a compromise on the issue.
Sen. Olympia Snowe, R-Maine, said the emerging proposal would shield employers from lawsuits except in cases in which firms either insure or insure and administer their own plans and accept liability rather than appointing a “designated decision-maker” to do so.
Fleischer’s remarks came a day after white House Chief of Staff Andrew Card, Bush’s political strategist Karl Rove and other aides traveled to the Capitol for a meeting in which the HMO bill and other issues were discussed.
The spokesman said Bush had called Snowe and other lawmakers during the day, and the Maine Republican said the president had urged her to expand compromise efforts beyond the narrow question of employer liability.
Bush and the White House have raised other objections to provisions in the bill related to lawsuits. They argue the bill permits patients to file suits before they complete an independent appeals process designed to rule on disputes with HMOs. They also oppose provisions that would open the way to lawsuits in state and federal courts, and to potentially huge punitive damage awards.
The Senate grappled with the liability issue as House Republicans formally unveiled a measure that would open the door to suits against HMOs in state courts under limited circumstances.
GOP leaders hope to attract enough support for the measure to prevent passage of legislation patterned after the bill pending in the Senate.
No House action is expected until after Congress returns from a July 4 recess.