POLITICS FEBRUARY 23, 2010
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Ever since President Barack Obama announced he'd be having a bipartisan meeting to talk about health care reform, Republicans have been denouncing it as a charade. He's not really interested in their ideas, they say. And he doesn't really want their support.
But is the problem that Obama won't listen to the Republicans--or that the Republicans won't listen to Obama? One way to answer that question is to watch what happens at Thursday's health “summit” meeting if discussion turns to medical malpractice reform.
The issue is familiar to anybody who follows health care policy or, for that matter, anybody who has ever spoken to a doctor at length. Republicans have long said that frivolous malpractice lawsuits make medical care more expensive, by forcing doctors to spend money on lawyers, malpractice insurance and in some cases large jury awards. In addition, they say, physicians who fear malpractice end up practicing "defensive medicine," ordering up unnecessary tests and procedures that cost a lot of money. The solution, according to the Republicans, is to cap jury awards, as several states have already done. California, for example, limits pain and suffering awards in malpractice to just $250,000 per case.
More often than not, Democrats have opposed malpractice reform. They've pointed to studies questioning just how big of an impact malpractice litigation has on overall health costs. They have also cited evidence--fairly incontrovertible--that most victims of medical errors never get any compensation at all. As such, Democrats have argued, capping damages won't do a lot to reduce health care costs. What's worse, it might discourage people with legitimate claims of malpractice from bringing legal action.
The parties' allegiance to special interests has reinforced the political stalemate. Business groups, which traditionally support Republicans, have promoted malpractice reform because it's part of a broader campaign to rein in liability lawsuits. (Such lawsuits frequently target corporations and result in large jury awards.) Trial lawyers, who traditionally support Democrats, have fought malpractice reform for the same reason. (Trial lawyers are the ones arguing and making a living from such lawsuits.)
But there are ways to break the impasse. While malpractice may not be a major factor in rising health care costs, the system is clearly broken. It forces doctors to operate under a cloud of suspicion, without necessarily punishing those physicians who are truly negligent. It encourages the use of tests and treatments that are frivolous, if not downright harmful. And it leaves the vast majority of people who need compensation for medical errors with no easy way to get it.
The key is finding ways to fix the malpractice system so that it helps both physicians and the patients, rather than one at the expense of the other. And there are several promising possibilities for achieving that. One is to have doctors report medical errors to hospital administrators, who would then notify patients and begin negotiations. A version of this "sorry works" model is in place at the University of Michigan Health System, where it has reduced lawsuits, cut litigation costs and sped the resolution of cases.
Another idea is to create a no-fault system, similar to the way workers' compensation works, or to channel most malpractice cases through special "health courts" that would come before jury trials. (The Scandinavian countries and New Zealand have such systems in place.) One other proposal--perhaps the most intriguing--is to tie malpractice to quality incentives, by offering some sort of legal protection to physicians who demonstrate they have abided by accepted clinical guidelines. Not only might such a scheme cut down on frivolous lawsuits. It might also improve the quality of care--which would, in theory, reduce the incidence of actual malpractice.
The good news is that Obama doesn't need convincing on this front. Back in 2005, while he was still just a senator, he co-sponsored (with Hillary Clinton) a bill that would have implemented a "sorry works" model nationally. It didn't become law, but Obama kept talking up malpractice reform. Last year, he instructed the Department of Health and Human Services to sponsor a series of demonstration projects around the country.
Michelle Mello, a Harvard professor and leading expert in the field, says experimenting with the different models is precisely the right approach to take--because the data on the different reforms is still very sketchy. But, she adds, the experiments HHS has launched probably won't go far enough, because they are too limited. To really see which approach works, it's essential to get more data--and, whenever possible, to get data that covers an entire area (or areas) rather than one hospital or hospital network. Otherwise, it's difficult to tell whether a program has worked simply because of idiosyncratic factors like a particularly dedicated staff.
This is where the Republicans could push the discussion forward. Both the House and Senate health reform bills encourage more experimentation. But they don't set aside enough money. If Republicans wanted to do something to change malpractice, they could call for more funding of these programs--and, perhaps, more aggressive guidance about how to handle the results.
Of course, that would mean achieving malpractice reform, a cause they've long championed, in a different manner than the Republicans have traditionally embraced. But that's the definition of compromise: Finding common ground with an adversary in order to achieve a goal you both share. Obama has shown he's willing to do that. Will the Republicans do the same?
Jonathan Cohn is a senior editor for The New Republic. This item is a collaboration between TNR and Kaiser Health News. KHN is an editorially independent news service and is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization, which is not affiliated with Kaiser Permanente.
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12 comments
Jonathan, Give me a break. It nice you're talking about it now that the current HCR plan is dead. Why weren't you or a single proponent of BIG HCR saying anything about this a year ago.
- dtohmatsu
February 23, 2010 at 3:10am
Dtoh - you must have missed this in Jonathan's post: "Back in 2005, while he was still just a senator, he co-sponsored (with Hillary Clinton) a bill that would have implemented a "sorry works" model nationally. It didn't become law, but Obama kept talking up malpractice reform. Last year, he instructed the Department of Health and Human Services to sponsor a series of demonstration projects around the country." Obama also mentioned that he was open to malpractice reform numerous times, particularly last spring when the "Gang of Six" discussions were going on.
- Geoff G
February 23, 2010 at 9:13am
Ever notice how in the GOP's blathering about malpractice they never, ever talk about balancing their proposals with any recourse against real quacks? The big concern is getting incompetent docs out of the system in the end, isn't it? Doctors will defend their own at the expense of the public. I've seen it over and over through the years. There was a recent case of a brazenly incompetent surgeon in NC that kept his license after some quite hideous malpractice cases he lost. The Raleigh News and Observer covered it at length in 2008. There were numerous complaints against the quack but the NC Medical Board kept looking the other way until someone died. This guy had seriously disfigured several people, and even nurses in the OR detested working with him, calling him a danger. How many times do you hear of a lousy doctor having his license yanked? Rarely if ever. Fix that problem, where a quack like that loses his license fast and cannot just jump to another state (which is what that "surgeon" had done), and then we'll talk malpractice reform. Until patients have some defense, real defense, against genuine malpractice, lousy docs will not be removed from the system but the public will be screwed. The only defense you've got against a bad doctor is the threat of malpractice. Every proposal I've seen basically shields doctors but leaves the public with virtually no recourse against malpractice. It's just one more way to shaft the public while the special interest wins. My dad told me once: cops, doctors and the clergy: they'll screw the public to protect their own. Dad was a wise man indeed.
- tnmats
February 23, 2010 at 9:58am
Dtohmatsu: Cohn has been consistent on malpractice reform for years. See, for example, this piece from about a week before anyone had much even heard of Barack Obama: http://www.tnr.com/article/trial-and-error
- frippo
February 23, 2010 at 10:11am
Pretty much everyone except for trial lawyers are in favor of reasonable caps on malpractice awards. The sole legit complaint -- that state licensing authorities do a poor job disciplining bad doctors and revoking licenses -- can be addressed in a few different ways as discussed here. To be honest, I have a hunch the CBO has downplayed the cost savings of malpractice tort reform: how accurately can you quantify the amount of "defensive medicine" decisions that are made out of fear of future litigation? Or if it frightens better doctors into "safer" practices. And if I'm wrong, $5 billion ain't nothing to sneeze at.
- Lymon1
February 23, 2010 at 10:57am
dtoh - you should get a job at FOX news - you ignore reality so completely, you'd be perfect. Great post tnmats, your Dad was indeed wise.
- WandreyCer
February 23, 2010 at 11:09am
Lymon, show me the concrete, strict changes proposed from the GOP addressing what I wrote earlier that are coupled with their desires to cap awards. To date I've never seen them bring up what I wrote above. All I ever hear from the GOP is about capping awards but never how to protect the public from quacks that shouldn't be allowed to practice medicine. I never, ever hear the flip side of "malpractice tort reform" of how to clamp down and remove dangerous doctors from the system. Never. If state medical boards did their job a lot of these malpractice suits would never happen to begin with.
- tnmats
February 23, 2010 at 11:51am
It is documented that preventable medical errors kill literally tens of thousands of Americans every year. The current system of addressing this problem is clearly a failure. Doing something serious about both malpractice and the junk lawsuits that exacerbate the problem would be good politics. So would a move to set national standards as a part of removing barriers to interstate shopping for health insurance. Just take recent op-eds by Gingrich, develop a workable means of addressing a majority of his (mostly practical) suggestions, and it would be absoutely clear to everyone who's placing party above country. Do it!
- Robert Powell
February 23, 2010 at 3:43pm
Malpractice aka tort reform will do little in the way of reducing medical malfeasance or defensive medical practice at a scale that people think it will. States that have enacted tort reform under this same argument have seen no significant cost reduction in doctor's medical malpractice insurance costs. Before eliminating the possibility to bring legitimate lawsuits to bear on doctors making medical mistakes we should put in place protocols to get them to get off their high-horses of infallibility and take the necessary steps to reduce mistakes to begin with. Simple things like surgery checklists, and other procedures that reduce the distractions and simple yet cascading mistakes that can lead up to larger medical practice mistakes and errors. The other issue to climbing malpractice rates is the fact that the companies that insure the doctors jack up rates to cover their own investment losses. Perhaps politicians who toot the the horn of tort reform should look into that before making claims about how caping suffering awards will magically reduce medical costs across the US. http://honolulu.injuryboard.com/medical-malpractice/tort-reform-myth-ama-statistics-refute-doctors-flee-myth-.aspx?googleid=262558 Believing in rainbows and unicorns might make you feel better but it's not reality. Maybe the GOP needs to wake up.
- singlspeed
February 23, 2010 at 6:28pm
tnmats - can't say for sure what, if anything, GOP has proposed -- Krauthammer suggested independent disciplinary commissions that could pull medical licenses, think Will has suggested something as well but can't recall what it is.
- Lymon1
February 23, 2010 at 7:00pm
Excellent post Singlespeed. I've known too many doctors that had a God complex. Considering I'm intelligent enough to design an integrated circuit by myself I can handle complex medical questions too. I've run into enough docs that don't like it when I question them, as if I dared to challenge the master. And Lymon, you proved my point. You never hear a GOP elected official say anything about how to address brazen malpractice.
- tnmats
February 23, 2010 at 8:52pm
No one is seriously suggesting that people's ability to bring legitimate lawsuits against malpractice be terminated. But, trial lawyers' boilerplate notwithstanding, there are billions of dollars and hundreds of thousands of lives to be saved by making a serious run at addressing the inter-related problems of medical malpractice and the current system of addressing it with inconsistent and wildly inefficient litigation.
- Robert Powell
February 24, 2010 at 8:21pm