Health Negotiators Look At Malpractice Adjustments
The possibility that malpractice changes could be part of health care legislation that suddenly seems to have better chances of passing has sent doctors and trial lawyers scrambling.
Senators on the Finance Committee are looking at the possibility of special courts in which a judge with medical expertise would hear malpractice cases, says Sen. Kent Conrad, D-N.D. The theory is that medical judges wouldnt be as easily swayed by emotion as are lay juries. Other possibilities include the option of arbitration, as well as some liability protection for doctors who follow “best practice” clinical standards in treating their patients.
Many economists are skeptical that malpractice insurance premiums paid by doctors – or even the practice of defensive medicine to avoid litigation – are major reasons for soaring health care costs. But the issue looms large politically because many conservatives in both parties are convinced that doctors routinely order up tests their patients dont need because theyre afraid of getting sued.
Obamas overture in his Wednesday night speech could give him a way to peel off some Republican votes, as well as shore up support from moderates in his own party. The president said that while he doesnt see malpractice changes as a “silver bullet,” hes talked to enough doctors to suspect that fear of litigation contributes to unnecessary costs. Hes directing the Health and Human Services Department to provide funding for pilot programs to test some alternatives to litigation.
“The door is open now to discussion of any kind of legitimate alternative,” said Rep. Bart Gordon, D-Tenn., a longtime supporter of malpractice curbs. Two ideas that Gordon has promoted will be part of the administrations pilot programs.
Doctors groups, which lost the battle for national limits on jury awards for pain and suffering, now see a possibility for other ways to reduce malpractice lawsuits.
“I think theres been significant movement,” said Dr. James Rohack, president of the American Medical Association. “The physician community has said its a problem. The Republicans have said its a problem. And now you have a Democratic president who says its time to deal with this.”
Trial lawyers say no further action is needed from lawmakers.
“It shouldnt be part of the health reform debate in Congress because the president is already doing something today,” said Linda Lipsen, the top lobbyist for the American Association for Justice, which represents lawyers. “I think it should close the door because the president has taken control over the issue.”
Administration officials said Obamas order will encourage states to experiment with programs that reduce litigation and promote patient safety. Preventable medical errors are estimated to cause 44,000 to 98,000 deaths a year. HHS officials pointed to two types of programs in particular.
One kind, known as “early disclosure” or “Sorry Works,” encourages doctors and hospitals to own up to their mistakes, apologize to patients and their families, and offer restitution as well as a pledge of corrective action to prevent other patients from being harmed by the same mistake.
The second type of program requires would-be malpractice plaintiffs to go before an expert before they proceed to court. The expert – it can also be a panel – acts like a grand jury to weed out frivolous cases. Gordon said that since his state of Tennessee adopted such a requirement last year, the number of malpractice cases filed has dropped by 69 percent. And malpractice insurance premiums are expected to decline by 2.5 percent this year.