Medical malpractice reform by President Obama and the White House

by Emily P. Walker, Washington Correspondent, MedPage Today

The White House today announced details of a $25 million grant program to test alternatives to the tort system for medical liability cases.

In his Sept. 9 speech before Congress, the president announced he would direct Kathleen Sebelius, Health and Human Services secretary, to launch pilot programs meant to cut down on physicians practicing “defensive medicine” to avoid lawsuits.

Republicans have long made this an issue, largely by pushing for caps on jury awards in malpractice cases. Democrats have just as vehemently opposed these limits.

In that context, Obama’s announcement that the government would back state-level pilot programs to find alternative ways to deal with the problem was widely seen as an attempt to win GOP support for his overall health reform effort.

The White House today provided some details about its proposal, saying it would award grants to states or health systems for programs that do the following:

* Put patient safety first
* Work to reduce preventable injuries
* Foster better communication between doctors and patients
* Ensure that patients are fairly and quickly compensated for medical injuries
* Reduce the incidence of frivolous lawsuits
* Reduce medical liability insurance premiums

The awards will be made in a “competitive three-pronged initiative” with these components:

* Grants for up to $3 million for three years to states and health systems to implement and evaluate evidence-based patient safety and medical liability demonstrations
* One-year grants of up to $300,000 to states or health systems to help the planning process of implementing such programs
* A review of existing initiatives that improve healthcare quality and patient safety and decrease medical liability. This report will be issued in December 2009

The effort will measure, among other things, the effectiveness of strategies such as expedited claim resolution, adoption of early mediation and disclosure protocols, and patient and provider satisfaction with interventions.

Grant applications will be due sometime at the end of 2009, and the Agency for Healthcare Quality and Research, which is part of HHS, will make award decisions in early 2010.

“We should explore medical liability reform as one way to improve the quality of care and patient-safety practices and to reduce defensive medicine,” Obama said in a memorandum.

“But whatever steps we pursue, medical liability reform must be just one part of broader health insurance reform — reform that offers more security and stability to Americans who have insurance, offers insurance to Americans who lack coverage, and slows the growth of healthcare costs for families, businesses, and government.”

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Comments

Doc Stone
Does anyone actually believe that is anything other than a sucker’s sop, a shrug off? There are 50 demonstration projects now–each state. If the Democratic party had any openness to actually acting on tort reform, they would do so now as they have all the information they need.
http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.
The reason that Obama and the Dems are not pursuing tort reform is simple; they don’t believe in it. Allotting $25 million dollars for some ‘pilot projects’ when the price tag for health care reform approaches $1 trillion speaks for itself. To those physicians who supported Obama, tort reform stagnation is one serious side-effect of your vote. Those who support the status quo are generally enriched by the current system. While we physicians are not perfect, I don’t think we would support policies that benefitted us to the medical detriment of our patients. I can’t say the same for lawyers.
Susan H
Aren’t there some precise suggested solutions that might be advanced?
Single-payer (government funded), reasonably priced med-malpractice insurance coverage?
Removal of damage award restrictions on abuse of process, or malicious prosecution lawsuits, against predatory frivolous litigants and their business partner/legal representatives?(That is, allow victimized medical professionals to recover their defense costs, lost wages, and be compensated for their emotional anguish).
There are many clever, specific ways tort reform could get started.
It might be more difficult for those in power to deflect questions about why they oppose particular common-sense solutions; the current speechifying mantra holds that tort reform is only about damage award caps.
Matt
That’s because for the primary backers of tort reform, insurers, caps are all that matter. They’re not really interested in paying more victims faster. Physicians have just been scared into being the face for the industry. Why do you think issues that really affect physician pay get so little play compared to tort reform? Because there’s no real big money behind it.
MillCreek
As a healthcare risk manager, I will be interested to see the specific details of any projects devoted to patient safety. As I like to say, if we do a better job of patient care, the claims tend to take care of themselves.
I hope also that many of the demonstration projects are set in the ambulatory setting, where most of the care occurs these days. Historically, most patient safety efforts occur in the hospital.
http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.
Patient safety is a laudable goal, of course, but it will not significantly impact on excessive litigation against physicians. In my view, we need a filter up front that will screen out cases without merit or defendants that are innocent, rather then have them wait months or years until they are released. Unlike caps, this would target the primary defect that exists now of using a legal net that ensnares too many innocents. Lawyers shouldn’t object since these innocent parties are ultimately dropped from the case anyway.
Matt
Since no one knows how many malpractice cases are actually filed, how can you say the number is “excessive”? It may well be that there aren’t enough claims made given the number of negligent acts resulting in damage. We simply don’t know.
If physicians don’t want to get caught up in a case where they are ultimately dropped, they should support proposals extending the statute of limitations and be willing to give statements under oath prior to suit being filed. Often it’s hard to tell who is responsible prior to the discovery phase, yet if you leave one out and the statute of limitations runs, you’re out of luck if they’re responsible.
Susan H
It is a wonderful idea to have statements under oath, with specific, pre-agreed consequences for any party committing perjury.
Parties subject to this requirement must include not only accused medical personnel but plaintiffs, plaintiff attorneys, and plaintiff expert witnesses.
Consequences for deceit must be as severe on plaintiffs and their business partners on the predatory litigation as on medical providers (defendants).
Matt
Susan, we already do have that in the discovery phase – depositions.
What I was referring to was getting physicians willing to give those statements prior to filing suit, since they claim to hate it that they’re named in a lawsuit.
Rezmed09
“But whatever steps we pursue, medical liability reform must be just one part of broader health insurance reform”
Why? Liability reform is needed throughout our society. It really should be a separate bill. Tort is becoming such a large part of our society we tend not to see it anymore. All the release forms we have to sign – when renting skates or parking in parking lot, etc. We are a people who lare led around in circles by attorneys and corporations pushing our fear buttons with advertisements and legalese.
Matt
Actually most studies show tort filings are down. The majority of lawsuits are businesses filing suit. Strangely, no one wants to limit corporate America’s ability to file suit, just us little people.
Incidentally, those release forms don’t do anything legally.
William Nuesslein
The premise for Obama style tort reform is that law suits can be avoided if doctors were more careful at their craft. Holding doctors accountable is dear to the advisers to the Presidents.If holding accountable were efficacious, then why does New York State have no-fault auto insurance? No matter the care taken, medical procedures will always have some residual rate of adverse outcomes.
The second problem with “holding accountable” is that litigation poorly sifts valid clams from invalid clams. Junk science was so rampant that the Supreme Court issued Daubert.
Another problem with our system extant is that the wrong people buy malpractice insurance. In buying most insurance, life, auto, homeowner… the consumer can trade coverage for premiums. Now a gifted lawyer sets coverage at high levels after an insured event. That is why caps make some sense. I would rather have patients buy adverse outcome insurance and have settlements through administrative proceedings.

Medical malpractice reform by President Obama and the White House

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