PROS AND CONS OF THE BUSH PROPOSAL

Pros

The Bush proposal would control costs more than the Kennedy-McCain bill.

• Because state courts often award higher damages than their federal counterparts, the Bush proposal promises lower litigation costs because lawsuits would be heard only at the federal level.
• Having lawsuits heard only by the federal courts also protects employers from the high cost of being subject to multiple cases if lawyers can file in both state and federal courts.
• Although the details remain unspecified, the Bush proposal suggests that he feels the $5 million cap imposed at the federal level is too high. Insurance companies and business groups agree.

Cons

The principles established by Bush would not do enough to deter managed care plans from trying to maximize profits by denying needed medical care.

• State courts often award higher damages than the federal courts, and under the Kennedy-McCain bill, state courts would hear most cases. This action would place more financial pressure on health plans to perform satisfactorily.
• Furthermore, it is unclear how one can federalize negligent medical judgment by HMOs by making such cases be heard at the federal level and simultaneously preserve state laws.
• Bush is unclear about the cap on damages. Aides, however, say he believes the $750,000 limit set in Texas while he was governor is more appropriate. Most Democrats are unhappy with the mere existence of a cap, and it will be hard to persuade them to adopt a lower damage limit.
• Employer groups remain concerned that Bush is willing to entertain any increase in employer liability.

Political Evaluation of Bush's Position

Some commentators have interpreted Bush's release of his statement of principles as an attempt to slow down an ongoing effort in order to get his views included in whatever bill emerges in Congress. However, Bush claims that he is trying to build a consensus behind a proposal that he will be making and that he would like to have the discussion based on principles.

But, White House officials had persuaded Rep. Charles Norwood (R-Ga.) to refrain from co-sponsoring the Bipartisan Patient Protection Act of 2001, although he had been the chief House GOP advocate of expanding patients' rights. Norwood, along with Rep. John Dingell (D-Mich.), had sponsored a patients' bill of rights in 1999, which was passed by the House but narrowly rejected by the Senate. Formally, Norwood has stated that he decided to withdraw full support of the Kennedy-McCain bill because he would like to give the Bush administration more time to make its own position on the issue. However, some critics claim Norwood's decision to pull back from co-sponsoring the bill was the result of political maneuvering by the Bush administration and had more to do with McCain and politics rather than the details of the bill; McCain had run against Bush for the GOP presidential nomination.