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Should find 'third way' on legal reform

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There's an important task that congressional moderates can perform on health care reform besides fighting the public insurance option and containing costs: Find a middle ground on medical malpractice.

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Even President Barack Obama ought to join the cause and go beyond the tepid studies that he's instituted and push for real centrist legal reforms.

And "third way" legislation is available -- developed by legal reformer James Wootton and backed by several provider, physician and advocacy groups -- that would make it possible to prevent and resolve medical mistakes with less resort to costly litigation.

The effort, backed by Xerox Corp., the pharmacy benefit manager Medco Health Solutions and the American College of Cardiology, is also designed to advance use of health information technology by limiting the ability of trial lawyers to raid information systems for lawsuit fodder.

A model bill, the Patient Safety and Compensation Act, promotes physician apologies, early settlement offers, mistake-prevention discussions, use of independent experts and comparability standards for damage awards.

The bill has been promoted with several members of Congress but has yet to find a sponsor. It's getting late in the reform debate -- but not too late to be picked up and pushed.

It's an alternative to the endless battle between doctors and trial lawyers, Republicans and Democrats, over "junk lawsuits" and the right to recourse for victims of medical negligence.

For years, Republicans and the American Medical Association have been pushing a national $250,000 cap on non-economic damages ("pain and suffering") in malpractice cases.

When Republicans ran Congress, caps passed the House but got blocked in the Senate by Democrats and a handful of Republicans allied with the American Trial Lawyers Association.

In the meantime, about half the states have followed California's example in enacting caps, but nationally, the cost of malpractice insurance for doctors keeps soaring -- along with the expensive practice of "defensive medicine," the ordering of unneeded tests and procedures strictly to avoid lawsuits.

There's merit on both sides of the argument: Medical malpractice happens, people suffer and die -- perhaps 100,000 people a year from avoidable medical errors -- and they deserve recompense.

But it usually takes three to five years to win a court case. Many victims are discouraged by the ordeal from ever filing suit. And when they win an award, more than half of it customarily goes to pay legal and administrative costs.

On the other side, doctors -- especially neurosurgeons and obstetricians -- may pay up to $200,000 a year for malpractice insurance. AMA surveys show that the fear of getting sued leads 80 percent to 90 percent of physicians to practice defensive medicine -- the cost of which is variously estimated at $20 billion to $200 billion a year.

If it's somewhere in between, that's $100 billion a year or $1 trillion over 10 years -- more than the $900 billion ceiling that Obama has decreed for health-care reform.

Obama told the AMA this year that defensive medicine and lawsuits are "a real issue." He said -- no surprise, for a lawyer and a Democrat -- that he opposes caps but that he wanted to "explore a range of ideas" for reform.

In fact, he merely directed Health and Human Services Secretary Kathleen Sebelius -- once head of the trial-lawyer lobby in Kansas -- to conduct state experiments on alternative dispute resolution.

Actually, numerous state experiments already have been tried, including some items in Wootton's legislation.

According to a New York Times survey earlier this month, 20 states now require that malpractice cases be submitted to an expert panel to weed out frivolous suits.

Thirty-five states have passed laws protecting doctors who apologize for errors from having their words used against them. Virginia and Florida have no-fault "birth funds" that compensate families for neurological injuries to infants during childbirth.

At one stage of the reform process, Senate Finance Chairman Max Baucus, D-Mont., contemplated including a provision in his bill for specialized medical courts -- not part of Wootton's measure -- but that was nixed in a jurisdictional dispute with the lawyer-friendly Judiciary Committee.

So the Senate Finance bill merely contains a Sense of the Senate clause that tort reform alternatives be studied.

The House Energy and Commerce Committee adopted an amendment sponsored by Rep. Bart Gordon, D-Tenn., to pursue alternatives, but they would have to be set up by Sebelius.

Wootton, once president of the U.S. Chamber of Commerce's Institute for Legal Reform, told me that his purpose is "to change the litigation culture in American medicine" and cited an example from the Air Force.

"In 1952, more than 1,000 pilots died in crashes, and the Air Force knew it had to do something. So it instituted a system of 'brief/fly the mission/debrief/lessons learned,' and put the lessons to work on the next mission. Between 1952 and 2002, they reduced fatalities to nine because they had open discussions."

In medicine, he said, "there is a code of silence enforced by defense counsels and the medical-insurance industry when there is a medical error in a hospital -- they are told not to talk about it without a lawyer present."

That's part of what his proposal is designed to stop. It's also designed to advance health IT -- the key to quality control, pay-for-performance medicine and the spread of best practices.

"Obama is counting on electronic medical records, but are doctors and hospitals going to invest in it if a trial lawyer in one case decides to file a class action and can access every electronic record a provider has?

"Even some of the best hospitals in the country, I know, are keeping some things out of their systems because of fear of electronic discovery," he said.

Before Congress and the president complete the health care reform process this year, they need to take decisive action on the malpractice reform front -- not kick it into the future with mere studies. It's not too late.

Morton Kondracke is executive editor of Roll Call, the newspaper of Capitol Hill.

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