CQ TODAY PRINT EDITION
June 15, 2009 – 9:45 p.m.
Malpractice Issue So Far a Non-Starter on Hill
By Alex Wayne, CQ Staff
President Obama told doctors on Monday that as part of a health care overhaul, he would like to find ways to reduce the number of medical malpractice lawsuits. But it’s not clear that his allies in Congress have any interest in addressing the issue, a flash point in past debates.
An overhaul bill introduced last week by Sens. Christopher J. Dodd , D-Conn., and Edward M. Kennedy , D-Mass., includes no provisions on malpractice. The issue goes unmentioned in an outline of a House bill under development by three committees. And Senate Finance Chairman Max Baucus , D-Mont., isn’t expected to address it in legislation he plans to introduce this week, according to lawmakers and aides.
Orrin G. Hatch , R-Utah, a member of Baucus’ committee and Kennedy’s Health, Education, Labor and Pensions (HELP) Committee, said last week that in bipartisan talks about an overhaul, medical malpractice hasn’t come up. “They’re not going to do anything there,” he told reporters.
Physicians are perhaps the most important special interest involved in the debate. Obama’s remarks at the American Medical Association’s annual conference in Chicago were aimed at keeping them on his side.
He is acutely aware of their power: Doctors have been key opponents of past overhaul efforts, as an Obama adviser, former Senate Majority Leader Tom Daschle, D-S.D. (1987-2005), documented last year in his book “Critical.” Doctors and the American Medical Association (AMA) helped block overhauls proposed by Presidents Franklin D. Roosevelt and Harry S Truman, he wrote, and the AMA fought the creation of Medicare in 1965.
This year, the AMA has cautioned lawmakers that it will not support the creation of a government-run insurance plan, known as a public plan, that either compels doctors to participate or pays them Medicare rates. At the same time, Obama and congressional Democrats hope to wring savings out of the health care system by encouraging doctors to provide better care at a lower cost. “I need your help, doctors. To most Americans, you are the health care system,” Obama told the group.
‘A Real Issue’
Medical malpractice has long been a top concern of doctors’ groups. While only about a quarter of malpractice lawsuits result in payments to plaintiffs, according to the AMA and the Physician Insurers Association of America, doctors say that the fear of being sued pushes them to subject their patients to tests and procedures they may not need, driving up medical costs. Obama mentioned that as “a real issue” in his Monday speech.
He said he does not support capping jury awards in malpractice cases. Instead, he said, he supports efforts to make care more cost-effective and discourage excessive tests and other steps that doctors take to insulate themselves from liability.
“I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care,” he said.
The AMA wants federal legislation similar to a landmark law that California passed in 1975, which included a $250,000 cap on jury awards for “non-economic” damages, such as pain and suffering.
During their 12 years in the majority, congressional Republicans repeatedly pushed legislation to restrict lawsuits and cap jury awards, portraying the measures as antidotes to rising health costs. The Republican-controlled House on eight separate occasions passed bills to limit medical malpractice liability awards, but advocates repeatedly were unable to win enough support to get a vote in the Senate.
Following Obama’s speech on Monday, AMA President Dr. Nancy Nielsen told reporters that her members were pleased that Obama is open to steps that could lower medical malpractice premiums — and that the president had placed those efforts in the context of curbing unsustainable health care spending. She said AMA members would spend the next several days formulating proposals that could “help the president reach the goals we share.”
But others noted that Obama provided no detail about how to curtail lawsuits. “He is not in favor of caps on damages and yet offered no solution to the broken medical liability system,” said Dr. Donald Palmisano, a former AMA president who now heads the Coalition to Protect Patients’ Rights, a conservative group that opposes a public plan and other elements of Democrats’ overhaul legislation.
House Minority Leader John A. Boehner , R-Ohio, said in a statement that House Republicans were drafting legislation to address the issue. A spokesman for Rep. Roy Blunt of Missouri, who is leading a group of Republicans working on health policy, noted, “Republicans have a history of supporting medical malpractice reform laws similar to the successful reforms made in states like California and Texas.”
The spokesman, Nick Simpson, said a proposal to create specialized “health courts” to handle malpractice lawsuits might be an “area of common ground.”
One reason Democrats aren’t making a priority of the issue is that an important constituency — trial lawyers — is satisfied with the status quo. Les Weisbrod, the president of the American Association for Justice, which represents trial lawyers, issued a statement Monday, saying that the group would only support creating “practice guidelines” for doctors to help them avoid mistakes that lead to lawsuits.
“By taking away the rights of people to hold wrongdoers accountable, the quality of health care will suffer tremendously,” he said. “Limiting the legal rights of injured patients will do nothing to lower health care costs or aid the uninsured.”
But another reason has to do with legislative jurisdiction. The health care overhaul is already an enormously complicated piece of legislation, with five committees — three in the House and two in the Senate — involved in drafting the measure. Adding titles to the bill addressing medical malpractice lawsuits would mean involving the two Judiciary committees as well.
An aide to the Senate Judiciary Committee said Chairman Patrick J. Leahy , D-Vt., “has reached out to the chairmen of the HELP and Finance committees to assert the jurisdiction of the Judiciary Committee on issues related to medical liability reform, but at this time, we are aware of no specific language in the discussions.”
Adriel Bettelheim contributed to this story.
Comments
AMERICA'S NATIONAL HEALTHCARE EMERGENCY! It's official. America and the World are now in a GLOBAL PANDEMIC. A World EPIDEMIC with potential catastrophic consequences for ALL of the American people. The first PANDEMIC in 41 years. And WE THE PEOPLE OF THE UNITED STATES will have to face this PANDEMIC with the 37th worst quality of healthcare in the developed World. STAND READY AMERICA TO SEIZE CONTROL OF YOUR NATIONAL HEALTHCARE SYSTEM. We spend over twice as much of our GDP on healthcare as any other country in the World. And Individual American spend about ten times as much out of pocket on healthcare as any other people in the World. All because of GREED! And the PRIVATE FOR PROFIT healthcare system in America. And while all this is going on, some members of congress seem mostly concern about how to protect the corporate PROFITS! of our GREED DRIVEN, PRIVATE FOR PROFIT NATIONAL DISGRACE. A PRIVATE FOR PROFIT DISGRACE that is in fact, totally valueless to the public health. And a detriment to national security, public safety, and the public health. Progressive democrats and others should stand firm in their demand for a robust public option for all Americans, with all of the minimum requirements progressive democrats demanded. If congress can not pass a robust public option with at least 51 votes and all robust minimum requirements, congress should immediately move to scrap healthcare reform and demand that President Obama declare a state of NATIONAL HEALTHCARE EMERGENCY! Seizing and replacing all PRIVATE FOR PROFIT health insurance plans with the immediate implementation of National Healthcare for all Americans under the provisions of HR676 (A Single-payer National Healthcare Plan For All). Coverage can begin immediately through our current medicare system. With immediate expansion through recruitment of displaced workers from the canceled private sector insurance industry. Funding can also begin immediately by substitution of payroll deductions for private insurance plans with payroll deductions for the national healthcare plan. This is what the vast majority of the American people want. And this is what all objective experts unanimously agree would be the best, and most cost effective for the American people and our economy. In Mexico on average people who received medical care for A-H1N1 (Swine Flu) with in 3 days survived. People who did not receive medical care until 7 days or more died. This has been the same results in the US. But 50 million Americans don't even have any healthcare coverage. And at least 200 million of you with insurance could not get in to see your private insurance plans doctors in 2 or 3 days, even if your life depended on it. WHICH IT DOES! Contact congress and your representatives NOW! AND SPREAD THE WORD! God Bless You Jacksmith – WORKING CLASS
Mr. Obama's flat refusal to address the runaway tort system will be the downfall of his healthcare system reforms. Physicians have learned the hard way that there is frequently precious little justice in the "justice system". Unfortunately, in order to practice medicine in the USA, you must "first, do no harm" and second, "cover your backside". The cost of medicine in America is easily trebled by the number of additional examinations, radiological studies, laboratory tests, procedures, hospital days, consultations, follow-up evaluations, etc. that are mandated by the "justice" system. Physicians are therefore prevented from providing good patient care directed by good training, above average intelligence, and a clear conscience. By implementing reasonable protection from overzealous trial lawyers, the cost of medicine will decline from the cost of practicing defensive medicine to the cost of practicing good, safe medicine. Finally, the physicians will be able to "do what is right for the patient" rather than what the liberal courts and ravenous trial lawyers demand. Rather than doing the right thing for the healthcare system, Mr. Obama is pandering to his Congressional Cronies by toeing the Party Line. His unwillingness to enact meaningful tort reform will cost him the support of physicians, and therefore (hopefully) derail this Misbegotten Boondoggle of a reform package.
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