Medical Malpractice, Will it Be Part of the Healthcare Reform Discussion?

As part of the general discussion on how to reform the healthcare industry and reduce costs, medical malpractice reform is beginning to enter the discussion.

Reviving the issue could provoke a fierce fight from trial lawyers, who, along with doctors, have the most at stake.  Already the trial lawyers’ US Supreme Courtlobby is preparing to distribute a brief on Capitol Hill casting medical malpractice as a small cost in the overall health system. The brief cites an Institute of Medicine finding that as many as 98,000 deaths in the U.S. each year result from medical error.

Trial lawyers and their Democratic Senate allies helped kill attempts under the Bush administration to cap punitive and pain and suffering payouts in malpractice lawsuits. The Congressional Budget Office says such caps could have saved the federal government $4.3 billion from 2010-2019.

Many administration officials say something must be done to curb medical malpractice costs to help pay for revamping the nation’s $2.4 trillion health system.  Obama himself told business leaders last week that ideas to save money like “medical liability issues — I think all those things have to be on the table.”

Also, Senate Finance Committee Chairman Max Baucus, D-Mont., cites costs including fast-rising medical malpractice insurance premiums and so-called “defensive medicine” whereby doctors prescribe treatments that may be unnecessary to guard against getting sued if they fail to do so.

There’s agreement from some in the House including Rep. Rob Andrews, D-N.J., who chairs an Education and Labor health subcommittee.  “It’s hard for me to imagine a result that gets to the president’s desk that doesn’t deal with the medical malpractice issue in some way,” Andrews said in an interview Tuesday.

Proposed solutions include alternative dispute resolution, some similar to legislation that Obama co-sponsored with Hillary Rodham Clinton when both were in the Senate in 2005. Their bill would have created a program to allow patients to learn of medical errors and establish negotiated compensation with the offer of an apology.  Also Baucus has proposed giving states grants to develop alternate litigation, such as “health courts” whose judges have health care expertise.

Both lawyers and doctors say they’re open to alternative dispute ideas.

But “changing the legal system will not make anyone healthier or save one life,” said Linda Lipsen, senior vice president of public affairs at the American Association for Justice.  On the other hand, Nancy H. Nielsen, president of the American Medical Association, told Obama health adviser Ezekiel Emanuel that “We need meaningful tort reform.”

Emanuel told her to “Stay tuned”.


For those of you who are “tuned in” and waiting on something to happen, we’ve got three issues for discussion:

1)  Do you believe that medical malpractice reform is a good opportunity to reduce significant costs in our healthcare system?

2)  What sort of ideas would you have to improve the system, while at the same time maintain justice?

3)  Do you think that “defensive medicine” is a significant factor in our high cost healthcare system?


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