Will reforming the malpractice system be a deal breaker for health reform?

In a surprise, President Obama has signaled a willingness to discuss medical liability as part of the health reform process.

Good for him for standing up to the trial lawyers, a core constituency of the left.

That’s a good sign, as the costs of defensive medicine brought on by the broken malpractice system, should be addressed if there is any hope of reducing health care spending.

Trial lawyers like to say that medical malpractice represents “less than one percent of the cost of health care,” but that fails to account for the substantial sum attributed to defensive medicine doctors practice to avoid the threat of malpractice, estimated to be $210 billion annually.

Furthermore, the argument that malpractice reform will harm patients “by limiting their ability to seek compensation through the courts” doesn’t hold water either.

That’s because the current system does a miserable job of compensating patients for medical errors, where more than 50 cents on every compensated dollar goes to pay lawyers and the courts. Not to mention that a typical malpractice trial may last years before an injured patient receives a single penny.

So, don’t believe the arguments of the trial lawyers, who prefer the financial security of the status quo.

Any alternative system, such as no-fault malpractice, mediation, or health courts, will go a long way both to reduce the cost of medical care, and fairly compensate more patients for medical errors at a significantly more expedient rate.

Lawyers are aware of these facts, and to their credit, are going on a preemptive offensive to head off tort reform. If I were the AMA, I would start pro-actively circulating some of the above talking points, rather than reacting to the trial lawyers.

Update:
Ask, and ye shall receive. Joseph M. Heyman, chair of the AMA Board of Trustees, responds to the post in the comment section below:

Signals from the Obama administration that they are considering medical liability reforms are encouraging, and it’s clear those signals have spooked the trial lawyers into reviving stale arguments to maintain the status quo. Both Democrats and Republicans in Congress recognize that medical liability reforms are needed to curb health care costs. Doctors are forced to practice defensive medicine because of the pernicious eagerness of lawyers to sue, regardless of merit. As we work to achieve greater value from our health care spending, it’s clear to lawmakers on both sides of the aisle that liability reform is part of health system reform.

While we continue to support caps on non-economic damages as a proven reform working in California and Texas to keep physicians in practice and preserve patients’ day in court, we’re also open to alternative methods of dispute resolution, such as mediation and state health courts. Physician leaders shared those ideas with lawmakers last week during the AMA’s National Advocacy Conference in Washington, D.C.

The bottom line is that we need to keep physicians caring for patients. We’re committed to meaningful action on health care reform this year.