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CNN Crossfire

What Rights Should Patients Have?

Aired July 26, 2001 - 19:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROBERT NOVAK, CO-HOST: Tonight: Losing patience over the patients' bill of rights. After a vote is postponed in the House, will this legislation ever become law? Will President Bush cast a veto or cut a deal?

ANNOUNCER: Live from Washington: CROSSFIRE. On the left, Bill Press; on the right, Robert Novak. In the CROSSFIRE: Congressman Tom Davis of Virginia, chairman of the National Republican Congressional Committee, and Republican Congressman Bob Barr from Georgia.

NOVAK: Good evening. Welcome to CROSSFIRE.

This was the week that the patients' bill of rights did not come up for a vote in the House of Representatives. Consideration of the HMO reform bill was put off because President Bush could not get enough Republicans to back the alternative measure that he wanted.

So does that mean the president will veto the Democratic-backed, and very popular, patients' bill of rights? Not if he can help it. Congressman Charlie Norwood of Georgia, leading the Republican defectors, met with the president twice today to try to resolve their differences, mainly over how hard or easy it will be to for aggrieved patients to sue their insurers in state court.

This is an issue that lots of people care about and, consequently, the political stakes are high. Will George W. Bush veto, surrender, or cut a compromise with Charlie Norwood -- Bill Press.

BILL PRESS, CO-HOST: Congressman Davis, it seems to me when you've got a -- you can't get the votes for a Republican bill supported by a Republican president and a Republican speaker of the house, there's something wrong with what you're trying to sell, isn't there?

REP. TOM DAVIS (R), VIRGINIA: Not at all. You have to remember, this is, substantially, a bill that passed last time with about an 80- vote margin in the House. It's difficult to peel members back when they voted for a measure to vote for an alternative measure the next year.

And it's just been a little difficult. And it's close. We'll get over 90 percent of the Republicans. But at this point, we have three Democrats supporting it, so we just have no margin for error. NOVAK: Bob Barr, your president wants your vote on something he cares deeply about. Don't you feel a little guilty playing the game with Dick Gephardt and John Dingell against George W. Bush?

REP. BOB BARR (R), GEORGIA: Well, if that were the case, yes, I probably would feel guilty. But I'm not playing a game with anybody. What I'm listening to, Bob, and hopefully you are, too, is the people that really matter. In this case, it's the doctors and the patients. And they tell me that they need the HMO reform bill that Charlie Norwood has drafted, and as Tom said -- and I think voted for last time -- has gathered the vast majority of support in the Congress.

The president wants a bill also, and I want to give the bill -- the president a bill that he can sign. They're very close. But you can't compromise away the essence of what we're talking about here, and that is a meaningful remedy, Bob, for people who have been aggrieved by a bad decision by an HMO to be able to hold that HMO accountable. What's wrong with that?

PRESS: So Congressman Davis, as you both have indicated, this is not a new issue. It's been around three or four years. It's been voted on twice, debated many times. Minority Leader Gephardt, I think, had a good idea of what you just ought to accept and do about it. Please listen to Mr. Gephardt.

(BEGIN VIDEO CLIP)

REP. RICHARD GEPHARDT (D-MO), MINORITY LEADER: You can't continue to fight against the will of the House of Representatives. The speaker is fond of saying, let the House work its will. And this is a case where we have determined the will of the House repeatedly over a five-year period. There's no complication here. This is not complicated. We know where the majority in the House is.

(END VIDEO CLIP)

PRESS: So why don't you just have a vote, get it over with, and move on?

DAVIS: Bill, we're going to do that, but Dick Gephardt doesn't control the House. He doesn't control the timing of the votes. The president's been abroad the last 10 days meeting with the other G-8 -- G-7-G-8 leaders. And he needs an opportunity to come back and just talk about what he will sign.

It would be ludicrous for us to pass a bill in the House and Senate, send it to the president and have it die when we're so close to getting a resolution to this. I think Bob and I are both hopeful that we can get some agreement between House, Senate and the president and a signable bill. That's the goal in this -- not to give Dick Gephardt or Denny Hastert a victory.

PRESS: But look, you know, they always say it's liberals like me that are supporting this bill, or it's these moderate Republicans that are the problem. I mean, look who's sitting here! I mean this is -- you can't get anybody further to the right than Bob Barr on this issue!

BARR: That's the nicest thing you've ever said about me.

PRESS: Well, it pains me to say...

BARR: The only nice thing you've ever...

(CROSSTALK)

PRESS: ... but no. I mean, you can't even get a good, solid conservative like Bob Barr. You've got to admit defeat. You're never going to get there.

DAVIS: Bill, the difference is...

PRESS: Unless you change the bill.

DAVIS: Well, what if the president vetoes the bill and the bill goes down? Does that make you happy? Is it my way or the highway, is that what you're saying?

PRESS: I don't think he will.

DAVIS: Oh, I think he will. I think he will in a heartbeat if he can't get it -- and I think he will exercise whatever leadership he feels appropriate on that. Would you feel good about that, or is the goal to get a signable bill into law?

PRESS: But my question is, doesn't it tell you something when someone is solidly -- rock-solid conservative as Bob Barr can't support your bill?

DAVIS: I don't think this is a conservative or liberal issue. What it is, basically, is we've taken a bill that was out here, and it's so close now we're talking about what remedies you have to sue -- do you sue in state court or federal court, and what are the limits of liabilities and who can be sued.

Those are actually pretty minor when you consider that the average -- well, not to a trial lawyer or a trial lawyer's advocate, but to people who are out there wanting to get rid of the gag rule, people who are out there who want to hold their health plan costs down. This bill has come a long way, and I think we can use another month to try to work it out.

PRESS: Congress.

NOVAK: Congressman Bob Barr, I want you to listen to what President Bush says, not as he's misrepresented by Mr. Press, but as he speaks for himself. Let's listen.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: The most unacceptable thing to me is that there would be a piece of legislation that encourages lawsuits and discourages American citizens from being able to afford health insurance. I am deeply worried about any legislation that will cause people to have less health insurance. I refuse to accept that legislation.

(END VIDEO CLIP)

NOVAK: That is a real issue, that the bill you sponsor -- that you co-sponsor, that you support, will drive people out of -- will drive businesses out of health care plans and less people will be covered. Doesn't that worry you?

BARR: Well, if it were true, here again, Bob, it would. But it's simply not the case. You know, every time we come up with a good piece of legislation, you know there are the Chicken Littles who run out there and say, oh the sky is falling, the sky is falling. That's the same argument that President Bush heard when he was governor of Texas and he signed a very similar bill to this for Texas. The sky didn't fall...

(CROSSTALK)

NOVAK: ... into law without his signature, that's what it did.

BARR: But he didn't veto it, and he could have. It's essentially the same thing. It passed under his leadership.

But the point is, Bob, that all we're making here is a change to the federal law that removed the artificial brick wall that shields HMO from liability when they make a bad decision. That's not going to cut off people's insurance.

NOVAK: As I understand it, the only difference -- lasting difference of opinion between President Bush and Dr. Norwood of Georgia -- your fellow Georgian -- is the question of how easy is it to go into state court to sue. Now the trial lawyers, they want it to be very easy, but the president and the people in the administration want to have an intermediate step -- an independent body considering the suit before you go to court. What's wrong with that?

BARR: Bob, let me clear up one thing first of all. The trial lawyers don't support me. They never have, and they probably never will because I believe in tort reform. I'm not doing this because the trial lawyers want it. I haven't talked with them -- with any of them. The people that I have talked to repeatedly who unanimously support this legislation that Charlie Norwood has drafted are the doctors. And they're not in bed with the trial lawyers.

The problem here is that there is more to it than just how easy it is to get into court. That outside review mechanism that you seem enamored with in the Fletcher bill, which is the Bush bill, creates such a high burden you could never overcome it. That's the problem.

Now, the differences on the one hand, as Tom correctly says, are fairly minor in terms of the number of them. But they're also fairly substantial: that outside review mechanisms should not be such a high brick wall that you can never surmount it. PRESS: Congressman Davis, I was surprised to hear you say just a few minutes ago that this question over where you can sue and how much you can get for damages is like -- I don't want to put words in your mouth, but you said it was sort of not that big an issue compared to some...

(CROSSTALK)

DAVIS: It clearly isn't.

PRESS: Well, I would suggest that it is. I mean, I've heard so many will horror stories about people who've had serious damage to a member of their family or even death to a member of their family because of a bad decision made by some bureaucrat at an HMO.

I'd like you to hear -- there's a commercial running now by the -- it's called the National Partnership for Women and Families. Just listen to, please, a little bit of it.

(BEGIN VIDEO CLIP, TELEVISION AD)

UNIDENTIFIED MALE: ... brain damage leaves him unable to eat or to breathe on his own. He could die at any time if he's not continuously observed. The insurance company told us to give Ian up for adoption and let the taxpayers step in and pay for his care. The didn't care. It was all about saving money. A real patients' bill of rights would hold an insurance company legally accountable for their decisions.

(END VIDEO CLIP)

PRESS: So you can sue a doctor, you can sue a hospital. If an HMO makes a decision, results in something like that, why shouldn't you be able to sue?

DAVIS: You should. And the Fletcher bill...

PRESS: In state court for punitive damages.

DAVIS: As you know, state courts, many state courts have very high jury awards, and there is no limit here so you could get, you could be a billionaire over something like that.

PRESS: Not under the...

DAVIS: Under the Norwood bill because there are no limits on punitive damages. This child would get every penny they were entitled to. They would get up to half a million in pain and suffering (UNINTELLIGIBLE) , and they could get punitive damages with a limit. But there are limits on that.

The difficulty is these sky high awards drive up awards, drive up costs. Even the Congressional Budget Office has said this will increase costs of health care premiums. They ought to be able to get fully compensated for their injury. There is no question about that. The question is how high above that should they go when the lawyers walk off with a third of it. That's nonproductive dollars in my I opinion.

PRESS: Well, I have to tell you, if my that were my kid $500,000 would not do it for me, in terms of what that kid...

DAVIS: Well you could get millions to the actual award.

PRESS: ... what that kid is worth. But the other thing, you keep talking about this. As Congressman Barr indicated, this is the law in Texas. Became law under Governor Bush without his signature. The cost of health plans in Texas last year actually went down, and since 1997 when this bill became law there has only been 10 lawsuits filed under it.

I mean all these scare tactics that you are bringing up have not worked in Texas. If good enough for Texas why not the rest of the country, Congressman?

DAVIS: Bring them in Alabama and some of these other states where you get very high jury awards. As you know there is a lot of forum shopping in this business as well. And this stops this out an puts it into federal court where you get I think better judges and better juries.

NOVAK: Congressman Barr, I can't tell you what an unnerving experience tonight is for me -- that I have always, you have been one of my idols and here you are -- down.

BARR: You still are one of mine.

PRESS: You are making progress, Bob.

NOVAK: Down in the dirt with Gephardt and Dingell, but I want you to -- maybe if I can't have any impact on you -- I want you to listen to Tommy Thompson, the former governor of Wisconsin, now the secretary of HHS, and he puts it in very simple language. Let's listen.

(BEGIN VIDEO CLIP)

TOMMY THOMPSON, HHS SECRETARY: Why go through this effort when the president has indicated, that he will veto a proposal that will increase the number of uninsured and drive up the cost of insurance and improve the opportunities for litigation for the trial bar?

What sense does it make to go through this effort and end up with nothing?

(END VIDEO CLIP) 7 NOVAK: I want to repeat that question, what sense does it make if you are going to -- you won't even give up on the independent trial authorities so you don't have these multi billion dollar judgments, what sense does it make to have a veto by President Bush?

BARR: Well, it doesn't and we hope it doesn't come to that. I'm very, optimistic that President Bush and Charlie Norwood will be able to reach an agreement. But if they can't when all is said and done, Bob, I'm not listening to the politicians in Washington that you are listening to. I'm listening to the doctors back home, and they are the ones that tell me, Bob, the same doctors that treat you, they need to be put on a level playing field with HMOs and that is not the case now.

NOVAK: I have some very tough questions about that for you after we take a break.

PRESS: All right, we will take a break right here and when we come back let's talk about who is for this -- which bill, and who is against which bill, and why. More CROSSFIRE. Patients' bill of rights./

(COMMERCIAL BREAK)

PRESS: Welcome back to CROSSFIRE. The battle over a patients bill of rights has resulted in some very strange bedfellows. Would you believe Ted Kennedy and John McCain? Or would you believe Bob Barr and Bill Press? Can't believe it either.

The vote's been delayed, but the debate carries on, mainly over who can sue and where. Republican Congressman Tom Davis supports a limited right to sue. Republican Congressman Bob Barr supports a broader one -- Bob.

NOVAK: Congressman Barr, I asked an insider the other day why is it, it is so hard to get Republican votes for the president's proposal, and he said because the American Medical Association the AMA, is just raising hell.

Well this not your father's AMA. Did you know that the AMA which is just pulling out every stop for this bill gave twice as much money to Democrats in the last campaign -- and I think Mr. Davis knows about that -- as they gave to Republicans? Did you know that?

BARR: Well -- listen, I have, I have my own beef with AMA they are also coming out with a very anti Second Amendment agenda too, so I have my problem with them. And you may agree with them on that.

NOVAK: They are a Democratic liberal organization now, aren't they? BARR: Here again, you are listening to folks up here. I'm listening to the doctors back home, Bob, those men and women who treat people and who tell me and probably tell Tom and you all same thing, that right now the doctors have all the liability, and the HMOs have none.

All we are doing is saying give us legislation that puts the HMO and the doctor on a level playing field, that is all.

DAVIS: Norwood- Dingell actually expands the liability of doctors because it has some unspecified damages in there that could come through, that in 41 states could expand liability to doctors.

BARR: Under state law. DAVIS: Yes. And what I think is, I favor liability limitations on doctors and HMOs. I think they ought to be treated the same. This bill treats them the same -- tries to do that.

NOVAK: Let me suggest a reason why the doctors, the AMA, the individual doctors are so anxious about this bill. I just found this out and this is really the outrage of the month. The new Ganske- Dingell bill, that is the new variation of the Democratic backed bill that you are supporting, would -- would pre-empt all state medical malpractice laws, and would say that negligent health care professionals do not have to reimburse the expenditures of health care plans after malpractice.

Now, Congressman Billy Tauzin of Louisiana, chairman of the Commerce Committee says that the new Ganske-Dingell bill protects outrageous and reckless conduct by health professionals. Did you know about that provision?

BARR: Bob, there are so many letters flying back-and-forth up here, that you can't even see out your window sometimes.

NOVAK: You didn't know about that did you?

BARR: Listen, I have read that letter. I have read all the letters that are flying back-and-forth.

NOVAK: Is it true?

BARR: I don't think it is. It is not the way I read the bill.

NOVAK: They've got the language right there.

BARR: Here again, you are reading the stuff that Washington is putting out. I'm listening to the doctors back home.

(CROSSTALK)

NOVAK: I don't think you've read that, when you haven't read that language.

BARR: Yes, sir. I have.

PRESS: A lot of spin flying around. Congressman Davis, I want to talk to you in your -- put your hat on -- your NRCC hat on, OK, and first I want to quote to you, one of the best guests we've ever had on this show was Congressman Charlie Norwood on this issue about a month or so ago. Since then, he has been quoted as saying, quote, "Any member who supports this package," your bill, "does so for the exclusive benefit of the HMO lobby."

I don't think anybody mistrusts Charlie Norwood. He knows what he is talking about on this issue. How can you ask your members to go back to their district and say I voted for the phony bill, I voted for the HMOs?

DAVIS: It's not a phony bill. Bill, what you need to understand, these bills are very close together in terms of patients ability to sue their HMOs. We are arguing over what form and what are the limitations?

Now, I know Charlie feels very strongly about this, I voted for Charlie's bill the last time...

PRESS: I know you did!

DAVIS: It's not an outrageous bill. But I want to get a bill that is signed and I hope -- the president has indicated he would veto this bill -- I think that the Fletcher Bill, maybe Fletcher has amended or the Ganske-Norwood Bill is amended -- is the right answer. I think we ought to continue the negotiations.

PRESS: But I want to ask you, there are a lot of people who voted for that bill the last time, and they campaigned on that last year, saying that they were going to vote for it again. And now you are asking them, you just said it at the top of the show -- you are asking them to pull back from there, and vote for another version. People are smart, congressman. They know what's real and what's not real.

DAVIS: They are smart, Bill.

PRESS: How can you put them in that position?

DAVIS: Because the bills do essentially the same thing.

PRESS: No they don't!

DAVIS: Absolutely.

PRESS: Not on the right to sue -- that is why Bob Barr is supporting them.

DAVIS: Only if you're a trial lawyer, then you get to go to a state court where you get an higher award, and you can -- and you don't have limitations on liability. Only in those cases, but you get a faster answer, out of the Fletcher Bill than you do out of -- you have your appeals -- what patients want, they want to make sure that if their HMOs are denying them coverage, they get a quick appeals process that can overturn it.

(CROSSTALK)

BARR: The problem is, this is the same problem, Bob and Tom, that we had with the Republican-backed bill two years ago, it sets up this outside mechanism that they say, oh, you can get a quick answer. But the problem is, it places so many roadblocks in the way of your ability to get into court, to seek redress that you are effectively denied remedy.

NOVAK: That is what the trial lawyers say. But Bob Barr, in a formal life, you used to be interested in politics, I hope you are still interested in politics. I certainly am and I know Tom Davis is interested in politics. And when these when these people say we cannot compromise, when Democrats, they want a veto. They want a veto to use in this campaign.

BARR: I think you're right. A lot of them do.

NOVAK: And now, that is -- and that is what Bill Press -- I don't --

(CROSSTALK)

PRESS: Don't talk for me! I'll talk for myself!

NOVAK: He wants a veto.

PRESS: I do not.

NOVAK: What I wonder is, if over -- what I consider are these minuscule differences, Charlie Norwood negotiating for the Republicans, and George W. Bush comes to an agreement and he brings along Ganske and Barr and Steve Horn and everybody else, I think he also brings along 20 or 30 Democrats then.

And then, where is Dingell and Dick Gephardt and Bill Press? They are out in the cold, aren't they?

BARR: Bill will be here with me all the way. I'm sure he is here for the long haul. I don't...

NOVAK: He won't go for that compromise.

BARR: I think it depends on what the compromise is. The president met, as we saw earlier on this very program, you certainly have to believe it, the president had a very productive meeting with Charlie Norwood. They are working to try to iron out the differences. I hope they can. I think there is a good chance they will be able to.

NOVAK: But I...

(CROSSTALK)

NOVAK: I asked you a political question: won't the Democrats be out in the cold if this happens? The Democratic leadership wants to make this a political issue for 2004.

BARR: I don't think Bill wants to make it a political issue...

NOVAK: Come on!

BARR: But a lot of Democrats do. I will grant you that. Unfortunately.

PRESS: My political question is to you, Congressman Davis: let's say they don't reach a compromise, and let's say the House votes as it has before, for the Norwood Bill, which is just about the same as the McCain-Edwards-Kennedy Bill in -- the president has to sign that bill, he wouldn't dare veto that bill, wouldn't you agree?

DAVIS: I think no, I think you are way off on that. I think the president is going to show he is president, and he's going to stand up for whatever he believes, but Bill, let me make one point.

PRESS: Suicide.

DAVIS: Bob talked about obstacles for a patients to go to court if they lost the appeals...

NOVAK: Bob Barr did.

DAVIS: Bob Barr did. That is not accurate. What happens is, if the appeals board turns down a patient, they can still go to court. They just can't get punitive damages.

NOVAK: That's the last word.

Thank you very much, Congressman Tom Davis, Congressman Bob Barr. And that old barrister, Bill Press and I will be back with closing comments.

(COMMERCIAL BREAK)

PRESS: Bob, I think this is a no-brainer! Look, one side who got the doctors, the nurses, and the patients. On the other side, you've got the insurance companies. Why are you always on side of the bad guys?

NOVAK: Who is good and who is bad?

PRESS: I think it's clear.

NOVAK: Let me tell you something: you know a lot about Democrats, you know lot about Bill Clinton, who signs legislation that he didn't like. Let me tell you something and you can put it in the bank, that if the McCain Bill passes, the McCain-Kennedy-Edwards bill passes, in the form in the Senate, it will pass in the House in that form, it will be vetoed by George W. Bush. Mark my words, it will be vetoed!

PRESS: Mark my words: George Bush will cave on this issue, like he has caved on every other issue. He cannot go against the people of the country, he cannot go for the insurance companies, and survive politically. It is suicide and he won't do it, Bob.

NOVAK: Left-wing politicians like you do not understand George W. Bush, they don't understand a president of principle, and let me tell you, he will, I think, however, he is going to cut a deal with Charlie Norwood and you are going to be very unhappy.

PRESS: If he wants to get reelected, he will sign the bill. From the left, I'm Bill Press, good night for CROSSFIRE.

NOVAK: From the right, I'm Robert Novak, join us again next time for another edition of CROSSFIRE. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com