Why Howard Dean is wrong on medical malpractice reform

I am on record saying that some elements of tort reform will be passed by Congress.

The most likely reform will be safe harbor immunity for following physician-developed practice guidelines. We believe this is a start.

A more robust approach would include qualified immunity for those who consciously deviate from such guidelines because in a specific clinical circumstance, it makes good clinical sense for patients. This balance would keep doctors from being forced to blindly follow a cookbook just to avoid a lawsuit.

Medical Justice has proposed such language and vetted this topic with Republican and Democratic politicians. To our pleasant surprise, there has been bipartisan support.

So, how does this spark of optimism square with Howard Dean’s recent quote at a town hall meeting in Reston, Virginia? He was explaining why tort reform was conspicuously absent from the Omnibus Democratic Bill:

“This is the answer from a doctor and a politician. Here is why tort reform is not in the bill. When you go to pass a really enormous bill like that the more stuff you put in, the more enemies you make, right? And the reason why tort reform is not in the 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 is the plain and simple truth. Now, that’s the truth.”

Ok. Onward to our next prediction.

Howard Dean will be marginalized in the discussion vis a vis tort reform. President Obama and Former Senate Majority Leader Tom Daschle have explicitly stated that the safe harbor immunity discussed above should be part of comprehensive health reform. While Howard Dean may believe that subservience to the plaintiff’s bar makes passing a bill easier, other politicians understand that having physicians’ buy-in will be mandatory for long-term sustainable reforms.

Implementing tort reforms that have bipartisan support will change the chessboard. Count on it.

Jeffrey Segal is CEO of Medical Justice.

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  • http://www.seefirstblog.com Evan Falchuk

    Hi Dr. Segal,

    I’m not sure I follow your proposed reform – can you help me understand it better?

    You’re saying there ought to be a safe harbor if you follow clinical guidelines, and also a safe harbor if you *don’t* follow the guidelines.

    Other than wilfully harming the patient or recklessly deviating from sound clinical practice, it seems like it would be awfully difficult to show that a doctor ever committed malpractice under this scheme.

    Am I missing something?

  • DMS Student

    Evan,
    What is wrong with a system which only allows malpractice suits to be won when the physician “willfully harms the patient or recklessly deviates from sound clinical practice?” Bad outcomes often occur, but a bad outcome is usually not evidence of malpractice. Physicians should be free to practice good medicine and should only be held liable for reckless behavior or for willfully harming the patient (I think the latter is called “assault.”)

  • Matt

    This federal law will mean nothing in state court malpractice actions.

  • Medical Student

    DMS Student,
    I have some sympathy for what you’re saying, but I think that it falls far short of what we want a medical malpractice system to be. It’s not just recklessness and wilfull disregard that we want patients to recover from, but also downright incompetence. If your physician causes you harm due to their incompetence, no matter how well-meaning they were, then I think you should be able to recover.

    Matt,
    Could you go into a little more detail about when a federal law regulating malpractice would apply? If a malpractice case were filed in a federal court, the federal court still applies the law of the state, right? Under what circumstance would federal law be applied in a malpractice case?

  • Medical Student

    Evan,
    I think the idea is that following clinical guidelines should be an absolute defense agains malpractice, but for patients whose unique circumstances make the guidelines inappropriate, failing to follow them can’t be used as evidence of failing to meet the standard of care.

    Without this caveat, physicians would be reduced to simply following algorithms which they may know to be inappropriate, just so that they can benefit from malpractice immunity. It would be better than what we have now, but would essentially lead to another form of defensive medicine.

  • Radiologist

    Patients’ with “unique circumstances” do not fall within many guidelines, though there may be specific guidelines tailored for these circumstances (btw, no circumstances are really “unique”) In fact most current algorithms contain caveats and exceptions for patients with specific risk factors that the research had not accounted for such as history, medication and co-morbidity. To use an example from another post – suppose the child with the fall was also on a blood thinner. The guidelines don’t apply and you’d be clinically incorrect to apply them as the original research didn’t include these patients. Nobody’s talking about applying guidelines to patients where it’s not appropriate. This is common sense medicine which, for the most part, already takes place. The fact is, the patient you describe is a small minority of patients and most patient’s, like it or not, fall into “the herd” and can be treated as such.

  • Rezmed09

    Guidelines based tort reform would help procedure based specialties. But there are some many points at which, despite overall good care, an error occurs. With a good legal team any bad outcome has some error, somewhere in the chart, that can be capitalized on. The solution lies in limiting punitive and pain and suffering damages, and ultimately in Health Courts.

    But not much will change, because so much of tort is about revenge rather than fixing any problem.

  • Matt

    “because so much of tort is about revenge rather than fixing any problem.”

    Perhaps. Of course, there is the little matter of paying for the damages of the person injured by malpractice. You know, like the mountains of medical bills incurred, including future medical bills which will be paid to physicians. The matter of possibly being unable to work and provide for oneself and one’s family. And the matter of the lost quality of life. But I’m sure revenge is the key to most.

    But hey, maybe arbitrarily limiting pain and suffering damages or letting doctors judge themselves are the way to go.

  • Rezmed09

    Gee Matt, I did write:
    “The solution lies in limiting punitive and pain and suffering damages, and ultimately in Health Courts”.

    As for your other comments: look at how malpractice and tort are handled in Canada. No need for a conspiracy theory or star chamber fears.

  • Matt

    I was responding to your point. Damage caps have resolved none of your fears in 30 years of trying them. Health courts are just backdoor caps but still it’s the foxes guarding the henhouse.

    If you want to give the public single payer like Canada we can then talk malpractice in Canada. Until then it’s apples to oranges.

  • http://www.oginski-law.com Gerry Oginski

    There are so many fallacies in these comments and others on the web that people actually start to believe them after a while. For example, “…maybe arbitrarily limiting pain and suffering damages or letting doctors judge themselves are the way to go.”

    Why put an ‘arbitrary’ limit to someone’s pain that they have suffered at the hands of someone who caused them harm? Why limit it only to physicians? Why not create a limit for companies that create defective products? Why not create an arbitrary limit for the amount an injured victim can recover for an improperly designed bridge that collapses as someone drives over it? The analogies are endless.

    Business Week reported last week that attempts at tort reform will have little to no effect on health care and medical malpractice premiums. “The Truth About Malpractice Lawsuits. Doctors say the suits send health-care costs soaring, but studies show reforms would have little effect.”
    http://www.businessweek.com/magazine/content/09_39/b4148030880703.htm.

  • Doc99

    Bob Beckel, Democrat strategist, offers that Med Mal Reform would be the Dems Ace in the Hole.

  • Matt

    99, what you’re missing, and what Republicans are going to be duped on, is that with universal healthcare med mal cases will cease to exist regardless. The main thing that drives the awards, past and future medical bills, will no longer be an issue.

    Physicians will still be punished though, but by the federal government. And I’m betting it will be a lot more frequently, and you won’t have near the 75% success rate you have when you explain your case to a jury.

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