Health Reform to Include Medical Liability Reform, Democrats Say

Medical malpractice overhauls have died many deaths in Congress over the years, often at the hands of Democratic lawmakers backed by trial lawyers. Attempts to change the system may be getting new life.

As they search for savings to redo the nation’s $2.4 trillion health system, key congressional Democrats and administration officials, from President Barack Obama on down, are indicating they’re open to changing a system that’s a burden for doctors but a boon to attorneys and some victims of medical error.

“The cost issue is the thing that we actually think is the big driver in this whole debate,” Obama told business leaders last week.

Research, prevention and “medical liability issues — I think all those things have to be on the table,” the president said.

A key Obama health adviser, Ezekiel Emanuel, went further recently at a meeting of the American Medical Association.

“I’m not going to give you any details because I can’t. I just can tell you I’ve been thinking long and hard about that,” Emanuel, an oncologist and the brother of White House chief of staff Rahm Emanuel, told the doctors when asked about malpractice lawsuit reform. “It hasn’t gone unnoticed. So stay tuned.”

Doctors’ groups are heartened by such comments.

“We’re encouraged to see that lawmakers from both sides of the aisle and a growing number of key stake holders recognize the need for liability reform,” said Nancy H. Nielsen, president of the AMA.

But trial lawyers contend that medical malpractice amounts to a tiny portion of the overall cost of the medical system. They cite an oft-used 1999 statistic from the Institute of Medicine that as many as 98,000 deaths in the U.S. each year result from medical error.

“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.

The differing viewpoints could foreshadow intractable debates to come. So key lawmakers are looking for a solution that both sides could live with.

That’s unlikely to include capping punitive and pain and suffering payments, as President George W. Bush unsuccessfully tried to get Congress to do. Democrats largely oppose such caps, which exist in a number of states, but they do see problems in fast-rising medical insurance premiums and so-called “defensive” medicine whereby doctors prescribe treatments that may be unnecessary to guard against getting sued if they don’t.

Senate Finance Committee Chairman Max Baucus, D-Mont., has proposed providing states grant money to develop alternate litigation models, such as encouraging disclosure and compensation in the case of error, or establishing a “health court” whose judges have health care expertise.

Some ideas are 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.

In an interview, Sen. Ron Wyden, D-Ore., who has a bipartisan health bill that includes incentives to get states to enact malpractice reforms, said changing medical malpractice is key to overhauling the health care system.

“I think it’s an essential piece for there to be enduring reform, reform that will stick and will get a significant bipartisan vote in the United States Senate,” Wyden said.