FRIST NOT EXPECTED TO GET 60 VOTES ON MEDMAL CLOTURE VOTE.

Despite his attempts to persuade senators to vote for a medical malpractice bill limited to capping damage awards to providers of obstetrical and gynecological services rather than all medical specialties, Senate Majority Leader Bill Frist (R-TN) is not expected to get the 60 votes he needs Feb. 24 to cut off debate on the "Healthy Mothers and Healthy Babies Access to Care Act of 2003."

Senate Minority Whip Harry Reid (D-NV) said Feb. 20 that Democrats are holding steady.

Frist scheduled the debate to begin at noon Feb. 23, when the Senate returns from its Presidents Day recess, and the cloture vote to take place at 5 p.m. Feb. 24.

Senators were caught by surprise just before leaving on the recess when Senate Health, Education, Labor and Pensions Committee Chairman Judd Gregg (R-NH) introduced the more limited ob-gyn medical malpractice bill, S. 2061.

Jim Manley, the chief staff person on the Senate HELP committee for the committee's ranking member, Sen. Edward Kennedy D-MA), told Liability & Insurance Week, "the Democrats see this as a partisan bill and are not going to vote for it."

The bill would limit non-economic damages to $250,000 and would allow punitive damages "only if it is proven by clear and convincing evidence that such person acted with malicious intent to injure the claimant, or that such person deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer" and if punitive damages are available under applicable state or federal law. They could not exceed an amount equal to two times the amount of economic damages awarded or $250,000, whichever is greater.

A more comprehensive medical malpractice bill was blocked last July when Frist was only able to muster 49 votes to close debate.

Two Republicans voted against cutting off debate on that bill: Sens. Richard Shelby (AL) and Lindsey Graham (SC). Independent Sen. James Jeffords (VT) also voted against cutting off debate, as did all 45 Democrats who were present. Three Democrats missed the vote: Bob Graham (FL), John Kerry (MA) and Zell Miller (GA).

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