Will medical malpractice reform be included in the final health bill?

Believe it or not, some element of federal tort reform is not only possible, but likely.

Sounds counterintuitive? We all know that Congress has a strong majority with Democrats. We know the President is also a Democrat. We know the plaintiff’s bar strongly supports the Democratic Party. We know that Democrats have traditionally shied away from specific reforms, such as caps on pain on suffering. So, this would seem the worst time to even bring up the topic of professional liability. Right? Wrong.

Over the past several weeks, I directly asked several politicians whether they would back a different approach – safe harbors from litigation if a physician follows any number of guidelines. Such guidelines would be developed by physicians. A frivolous malpractice suit could be stopped dead in its tracks.

Physicians would not be obligated to follow guidelines. Indeed, they might consciously deviate from a guideline if, in a particular case, it made more sense to do something else. This would give doctors latitude to do the right thing for patients – and not be constrained to choosing between safe harbor immunity from litigation and their patient’s best interest.

I asked former Senate Majority Leader Tom Daschle and former Speaker of the House Newt Gingrich whether they could rally behind that proposal. Answer: Strong yes. I asked Senator Kay Hagan, a democrat, whether she would support such a proposal. Senator Hagan found the proposal intriguing and believed it should be seriously studied. Prior to answering that question, she distanced herself from traditional reforms, such as caps on pain and suffering.

In fact, a number of Democrats and Republicans have stated this proposal makes sense. This proposal was memorialized in the HealthCare Overuse Reform Today Act HR 3372. Representative Tom Price of Georgia submitted that Act on July 29th. Representative Price is also an orthopaedic surgeon who understands the price physicians and patients pay for a capricious medico-legal system. Physicians are constantly forced to look over their shoulder and are frequently dragged into a courtroom even when exemplary care is rendered.

Patients pay more for care through defensive medicine. It is estimated that up to $200B is spent on defensive tests, referrals, and procedures. Admittedly, some defensive tests provide some value to the patient. But, the vast majority of defensive tests provide no value, except to keep the doctor out of a court. And, some defensive tests paradoxically put patients in harm’s way. Anytime a needle pierces the skin, there is a chance something bad will happen.

The broad Health Reform House Bill which passed before recess (HR3200) contains no language on tort reform. And, the bills floating through the Senate supposedly ignore the issue. Politicians on both sides of the aisle are learning that defensive medicine is not a myth. If common sense reforms can shave billions from health care cost, now is the time to get it done. So, I am on the record that some type of tort reform will be included in any final health care Bill.

Jeffrey Segal is CEO of Medical Justice.

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  • Doc99

    Howard Dean:

    Asked by an audience member why the legislation does nothing to cap medical malpractice class-action lawsuits against doctors and medical institutions (aka “Tort reform”), Dean responded by saying: “The reason tort reform is not in the [health care] bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on. And that’s the plain and simple truth,”

    http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Dean-says-Obamacare-authors-dont-want-to-challenge-trial-lawyers-55140567.html

  • SarahW

    Safe harbors if you follow a grid for a herd, and not what is appropriate for your individual patient? I don’t think protecting negligence improves the lot of patients.

    Frivolous is for the court (rules of procedure and evidence) and the jury to decide.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    There’s no chance of any meaningful tort reform being included in #Obamacare. The AMA rolled over on this issue when they had a White House photo op a few months ago. The only constituency who is passionate in favor of reform is the medical profession. We don’t have the clout to push the issue forward and the forces favoring the status quo out-muscle us. For Obama, tort refrom isn’t low priority, it’s no priority.

  • http://www.healthleadersmedia.com Elyas

    There’s actually already an amendment to the House bill that will reward states for passing tort reform, as long as it doesn’t include a cap on damages: http://healthleadersmedia.com/content/237495/topic/WS_HLM2_PHY/House-Reform-Bill-Would-Give-Dollar-Rewards-To-States-That-Pass-Tort-Reforms.html

  • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

    The AMA is pretty useless these days.

    Sarah, speaking as a member of the herd who has put patients first and suffered mightily for it, the current system does NOTHING BUT protect negligence.

    And right now, I’m probably not someone you want to talk to about the precious rules of procedure & evidence working to uncover the truth. I’m six years into trying to get a DA/Attorney General to enforce very clear, very black & white laws on perjury. The Courts can be a black hole.

    Frivolous suits put good doctors through hell.

    Yesterday, Obama called on doctors to support healthcare reform. Well, to have real /effective reform that actually protects patients, we need peer review reform. We need tort reform. We need whistle-blower protection. And Dr. Dean & company need to grow a spine.

  • http://www.toolboxMD.com ToolboxMD

    What is tort reform without a cap on damages? Doctors will still live in the fear of losing everything they have and order more tests just to be sure they are not missing anything.

  • LeeM

    If “bad outcome” insurance replaced malpractice injured patients could be fairly compensated and overhead costs (lawyers and courts) significantly reduced.

    Before surgery patient signs away the right to sue in return for an insurance police covering the procedure paid for by a % of the surgeons fee.

    Assume a surgical procedure such as a knee replacement has the following historical outcomes and proposed compensation:

    Success – no major issues 95% :no payout
    Revision needed 5% : Cost of revision
    Bad side effect – loss of limb 0.2% : $100,000
    Death 0.05% : $500,000

    After surgey the patient or estate can collect the specified amount simply by providing evidence of loss.

    The cost of the insurance for each procedure would be based on the expected outcome (riskier == more expensive) and surgeons past loss record.

    A surgeon would -not- be penalized for taking on risky cases since the risk would be factored in to the insurance fee. His fee would be higher to cover the risk, but that is a good thing.

    The surgeons would have incentive to improve their outcomes, and also their “expected results” disclosures to keep their rates low.

    The rare unlucky patient or family would be compensated without the trauma of a trial. There could also be an option for the patient to “buy up” additional coverage.

    The health system overall would benefit from the curtailing of high risk little chance of benefit procedures.

    Obvisouly this is grossly simplified but hopefully conveys the general idea.

  • Doc99

    AAPS just filed suit against the White House for Free Speech Infringement (flag@whitehouse.gov).

    http://www.aapsonline.org/whohr-lawsuit

  • Brian

    The suit looks to be without merit. Additionallly, the AAPS is a group I cannot abide. Their positions tend to be heavy on the pomp, but light on the circumstance.

  • http://drbrenner.blogspot.com @irb123

    While I support tort reform, these suggested inclusion won’t do much to fix the problem of defensive medicine. They will help stop the bleeding for docs in states without laws.

    See my recent blog: The Risks of Defensive Medicine and Why It Isn’t Going Away Anytime Soon. Even with Tort Reform: http://bit.ly/xnSFD

  • http://feedyouradhd.blogspot.com Dr. Dave

    Just a slight correction here:

    “The broad Health Reform House Bill which passed before recess (HR3200) contains no language on tort reform”

    The bill passed the COMMITTEE stage; it did NOT pass the House. It hasn’t made the floor yet.

    Oh…and if Democrats put tort reform in the final version of any bill, hell will freeze over and monkeys will fly out of everyone’s butts.

  • SarahW

    Why should a patient have compensation for a bad outcome when it isn’t the result of negligence rising to the level of malpractice? Why would you distribute compensation to people who haven’t been harmed by anyone?

  • http://www.medicalbarista.com Dr. Kona

    I second Dr. Mary Johnson’s response to Sarah’s comment. The goal of tort reform is not to protect negligence. Negligence in the medical profession has never been tolerated. Adjusting laws regarding how a patient may be compensated for an untoward outcome hardly protects negligent doctors. Patients will always be protected from negligent doctors, but why can’t doctors be protected from abusive patients?

  • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

    I’m all for protecting good doctors from frivolous lawsuits.

    But actually, Dr. Kona, medical negligence is tolerated and overlooked everyday – because of the way our medical peer review system currently works (as a result of HCQIA) . . . from hospital review committees to the high and mighty medical boards it’s very hard to bring a bad doctor down.

    On the flip side it’s real easy to destroy a good doctor/medical whistle-blower – using the same means that can’t seem to slow down a bad one.

    The AMA and JCAHO, hiding behind what I like to call “The White Wall” have been blind to the abuses (i.e. “bad-faith” peer review), and instead have adopted the (hospital-friendly) notion that all doctors are inherently “disruptive”.

    And that makes it all the more easy to cut down whistle-blowers – because they are (of course) by definition “disruptive.

    The irony here is a lot of this came about (again via HCQIA) because of hospitals’ fear of litigation.

    The medical profession is not going to get decent tort reform until it can convince the public ir can effectively police our own. And the medical establishment is not doing that.

    Today of all days drives this message home. Michael Jackson was killed by a doctor in his bedroom with a needle (loaded with “Milk of Amnesia”).

    Where was/is the California Medical Board?

  • Matt

    “What is tort reform without a cap on damages? Doctors will still live in the fear of losing everything they have and order more tests just to be sure they are not missing anything.”

    What is tort reform WITH a cap on damages? There’s no evidence, after decades of caps, that physicians order any fewer tests in those states with caps than those without.

    Federal tort reform is meaningless, since a malpractice action is a state law issue.

    You will get your tort reform as part of embracing universal coverage.

    If physicians have a fear of losing everything with every patient, then they’re even more foolish with their statistical analysis than they are with their political.

  • Physician’s Spouse

    Not to get off subject. But I recently read the AMA’s statement about why physicians should support HR 3200 – because it will put physicians “at the table” to help make revisions and admendments to it. Although I am not a political expert, to me, that sounds like marrying a stranger and getting to know them later. Why would physicians back a bill that may (or may NOT) get the revisions they could support?
    Why can’t the AMA wait to support the final bill once they KNOW it supports their goals for health care reform (which would include tort reform)?

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