What's Best For The Patient?

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He enjoyed it so much he was eager to do it again on his Patient Protection Act, which he introduced two weeks ago with Republican John McCain and North Carolina Democrat John Edwards. "We ought to do the same thing on this," he told Bush during a Capitol Hill lunch on March 15. Bush smiled but didn't commit. "We've gotten the cold shoulder," Kennedy later complained.

He shouldn't have been surprised. Bush, like Kennedy, wants more protections for patients, including more access to emergency rooms, specialty care and clinical trials. But he wants no part of provisions in the Kennedy bill that would allow aggrieved patients to sue HMOs in state court and win jury awards of up to $5 million. Conservative Republicans in Congress were appalled at the thought of a Kennedy-Bush compromise on the legislation, but they needn't have worried. Bush wasn't eager to strike any deal that would burnish the reputation of McCain, his bitter opponent in the Republican presidential primaries and still a rival today. So instead of supporting McCain-Edwards-Kennedy, Bush endorsed the more business-friendly measure sponsored by Senators John Breaux, Bill Frist and Jim Jeffords. So far, Kennedy's bill appears to have more support, though Republicans, led by minority leader Trent Lott, are introducing amendment after amendment meant to water down or even kill it.

If the bill isn't finished this week, majority leader Tom Daschle has threatened, he will keep the Senate in session through the July 4 recess. But Lott wants to string out the debate so HMO and insurance groups can get more attack ads on the air and G.O.P. Senators will have more time to round up votes for their poison-pill amendments. The American Association of Health Plans, for instance, has budgeted up to $5 million this year to attack the Kennedy bill, and is running a TV spot featuring a small-business owner in Texas who frets that the bill will drive up insurance costs and force her to cut employee benefits. Republicans want to lower the caps on jury awards that patients can receive in federal courts, allow no cases to be filed in state courts, and put in place ironclad guarantees that employers can't be sued over the health-care benefits they offer. "This bill is a disaster for employers and employees," claims Senate minority whip Don Nickles. The new regulations and costs it imposes on insurers and HMOs, he adds, "could cause millions of people to lose their insurance."

That's by no means a given. Kennedy's bill could increase health-care costs 4.2%, according to a Congressional Budget Office estimate, but states like California, Georgia and Texas have put in place tough patient-protection acts, yet have not seen waves of new lawsuits or hordes of workers dropped from insurance rolls. The year after Texas enacted its patients'-rights law, the cost of premiums decreased while the number of people with insurance increased more than 200,000, according to Kennedy. "The actual number of uninsured has gone down," he argues. His bill would shield employers from suits except when they are directly involved in medical decisions. Even Bush has said he doesn't want to let employers completely off the hook. Can they find middle ground?

If not, Republicans could be the ones paying the price. Polls show overwhelming support for a patients'-rights bill. Everyone these days has heard an HMO horror story--or lived through one. Says McCain: "Too many Americans have had life-altering medical decisions micromanaged by businesspeople rather than medical professionals." Bush, who has seen his poll numbers slip because of voter concern that he's too sympathetic to Big Business, doesn't want to carry out his veto threat. G.O.P. Senators up for re-election in 2002 don't want to be labeled obstructionists. "We're going to pass a patients' bill of rights that is balanced," says Frist.

That requires compromise. Both sides will have to budge on liability caps, and Democrats will have to accept language more clearly exempting employers from suits. Republican moderate Olympia Snowe is leading the way on that issue, and Daschle supports her. House Speaker Dennis Hastert is floating a proposal to allow a limited number of patient suits in state courts.

Kennedy may yet get a phone call from his new friend in the White House. Bush doesn't trust McCain or Edwards, both of whom may vie for his job in 2004, and he suspects Daschle would like to milk this debate for its political value rather than strike a deal. "The President doesn't view Ted Kennedy that way," says White House press secretary Ari Fleischer.

Bush may have Teddy pegged correctly. Though he's by far the most liberal of the bill's top three sponsors, Kennedy is also the most skilled legislator, the one who knows how to cut deals and enjoys the process. He plans to give Bush fits on judicial nominees, and he will try to put Bush on the spot with bills Republicans hate, like a minimum-wage increase. But Kennedy can be pragmatic. "I try to set the bar high and see if we can reach it," he says. If he and Bush can get near the bar on patients' rights, Kennedy won't mind lowering it to get to a deal. "If we can't," he says, "I'll battle for another day." That's a language Bush can understand.