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Ducey wants federal cap on AZ medical malpractice awards

Gov. Doug Ducey

Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)

Gov. Doug Ducey wants Congress to adopt limits on what jurors can award to medical malpractice victims, a cap that Arizona voters have previously rejected multiple times.

Ducey told Capitol Media Services that limit on damages should be part of anything that becomes a replacement of the Affordable Care Act. He said some of the high cost of health care in Arizona can be blamed on high malpractice insurance premiums and awards to patients in lawsuits.

The governor’s comments came as the U.S. Senate killed the last-ditch effort by Republican leaders to repeal what has become known as “Obamacare.” It was John McCain, the state’s senior senator, who cast the deciding vote on the “skinny repeal” plan which would have annulled the Affordable Care Act now with a promise to come up with something else later.

Ducey press aid Daniel Scarpinato said Friday his boss is “disappointed” that Congress has essentially thrown up its hands and “will be taking a recess without repealing Obamacare.”

“The problems with Obamacare and the health insurance markets are real and continue, especially in Arizona,” he said. But the governor would not comment on the fact that it was McCain, as the deciding vote, who killed the repeal.

Ducey, however, still believes that the Affordable Care Act can be repealed and replaced.

Potentially more significant, the governor already has ideas on what needs to be in what comes next. And a key provision of that is what has been dubbed “tort reform.”

In essence, Ducey wants federal law to set limits on non-economic damages in malpractice cases. That category covers everything from the pain and suffering of patients — or survivors — to punitive damages that can be awarded when juries conclude a doctor’s actions were so egregious as to impose a financial punishment and send a message to others.

Ducey acknowledged that what he wants would overrule two provisions in the Arizona Constitution that date to the first days of statehood.

One, in the Declaration of Rights — the state’s version of the Bill of Rights — says “no law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person.” And another section says “the right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”

Proponents asked voters for outright repeal in 1986 and 1990. And four years later they sought to amend those same provisions, albeit to allow for “no-fault” auto insurance.

All three were defeated, leaving the legislature powerless to impose caps.

But the congressional action Ducey wants would override what voters here have rejected. That’s because the constitutional provisions are limits on the power of state government: They offer no protections against changes in federal law.

The governor defended the idea, saying he sees it as “allowing justice when there is wrongdoing, but not pushing doctors out of the marketplace, not making it so burdensome to practice medicine,” he said.

“We’ve certainly seen our (health care) costs rise in Arizona and in America,” Ducey said. “And I think part of it is how expensive the liability (insurance) and litigation has become.”

Ducey said Arizona should look to other states. One of those often cited is Texas where there is a $250,000 cap on non-economic damages for all doctors and other individual health care providers.

The idea of a federal override of the Arizona Constitution drew fire from David Diamond, president of Arizona Attorneys for Justice, a group composed of attorneys who represent plaintiffs in civil lawsuits. He said it would be wrong for Congress to impose its will.

“Arizona voters have three times voted down efforts to amend their constitution to allow caps on damages,” he said in a statement.

“This bill would ignore their wishes and impose the very caps they rejected,” he said. “This is overreach by the Big Brother federal government at its worst.”

Ducey said he has no specific language in mind for what he wants to see in limits.

“I want to see when someone is wronged that they are able to access justice,” the governor said. “But I also think we can do a better job so that we’re bringing doctors into the field and not putting them in a position where their premiums are so high they can’t afford to practice anymore.”

It wasn’t a question of tort reform that caused McCain to buck his party.

Sen. John McCain, R-Ariz. arrives on Capitol Hill in Washington, Tuesday, July 25, 2017, as the Senate was to vote on moving head on health care with the goal of erasing much of Barack Obama's law. (AP Photo/Andrew Harnik)

Sen. John McCain, R-Ariz. arrives on Capitol Hill in Washington, Tuesday, July 25, 2017, as the Senate was to vote on moving head on health care with the goal of erasing much of Barack Obama’s law. (AP Photo/Andrew Harnik)

McCain had, in some ways, been Ducey’s D.C. surrogate in the fight, saying he would not support a measure without changes sought by the governor. And Ducey had demanded several provisions, including ensuring that Arizona is not penalized for having expanded its Medicaid program before most other states, and protecting the federal dollars for that program, at least for the foreseeable future.

On Friday, McCain issued a statement saying said he could not support the “skinny repeal” because it would not have replaced the Affordable Care Act with something that “increases competition, lowers costs and improves care for the American people.” And in a separate statement, he said Republicans should give up on their bid to craft something on their own, saying partisans on both sides of the issue should “stop the political gamesmanship and put the health care needs of the American people first.”

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