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For the bill's supporters, the revelations about mounting trial lawyer activity couldn't come at a worse time.

When Congress reconvenes after the holidays, the House bill will have to go to conference with Senate legislation that includes far fewer patient protections and does not allow HMO members the right to sue their health plans.

Senate Republican leaders -- who hold great sway over the conference process -- have adamantly opposed liability provisions and are almost certain to raise the specter of trial lawyer activity in upcoming managed-care debates.

Trial attorney David Senoff agrees that the timing of the tobacco attorneys' class-action efforts could end up hurting the House bill's chances of passage. "Ultimately the lawsuits will impact on the decision," Senoff says. "Republicans are gloating. All of the things they have been trumpeting ... are coming true."

But Senoff, who specializes in suing on behalf of managed-care patients who feel they have been wronged by health plans, says that it would be a "miscarriage of justice" if the current legal activity were to derail the managed-care legislation -- particularly since the cases in question are being pursued under existing law.

Fitzgibbons agrees. "The [Norwood-Dingell] legislation itself does not enable class-action suits; in fact it specifically would [prohibit] all of the [types of cases now being pursued] under existing [law]," he says. Under the Norwood-Dingell bill, a managed-care patient would be required to go through an out-of-court third-party review process before filing any lawsuits.

Still, such fine distinctions will probably be lost in the bombast that will doubtless surround the managed-care debate in the coming congressional session, observers say.

"The politics next year are going to be even more prominent than they were this year," says a highly placed Senate leadership source who asked that his name not be used. As the managed-care debate becomes fodder for pointed campaign speeches, the chances that the combatants in the debate will come to an amicable compromise will dwindle markedly, the source says.

Democrats who want to use the legislation as an issue in their campaigns will be in no hurry to push the bill through conference, and Republicans who oppose the legislation certainly won't be in a rush to craft compromise managed-care legislation, observers say.

Compounding the problems facing the House managed-care legislation is the fact that the conference committee, which must reconcile the Senate and House bills, is "pretty heavily stacked" against a compromise, Fitzgibbons says.

The House leadership pointedly excluded Rep. Charlie Norwood, R-Ga., from the conference committee. A doctor and adamant supporter of managed-care reform, Norwood helped draft the House legislation and was largely credited with building the massive bipartisan support that the bill enjoyed.

The Senate source, who opposes the House bill, agrees with Fitzgibbons' assessment. "You couldn't get a more diametrically opposed group of conferees," he says.

Given the increasingly acrimonious dissension between the two camps -- aided in no small part by mounting concerns about managed-care litigation -- the possibility that the managed-care legislation will die on the vine is a "very likely scenario," Dooley says, adding that he doesn't think the debate will be resolved next year.
salon.com | Nov. 30, 1999

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