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September 14, 2009 5:43 PM

Obama Clarifies Position on Tort Reform on "60 Minutes"

Posted by Stephanie Condon
(CBS)
In his speech before Congress last week, President Obama attempted to win Republican support for his health care overhaul by agreeing to consider including medical malpractice reform in his plan. In an interview that aired on CBS' "60 Minutes" on Sunday the president shed some more light on what he meant -- and in which form he will not accept tort reform. (Read the transcript of the president's interview here.)

Mr. Obama on Sunday clarified that he is so far not willing to consider capping malpractice judgments, a reform proposal consistently put forward by Republicans.

"Many in this chamber -- particularly on the Republican side of the aisle -- have long insisted that reforming our medical malpractice laws can help bring down the cost of health care," the president said last Wednesday to a joint session of Congress. "Now, I don't believe malpractice reform is a silver bullet, but I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs."

The president then announced that he was directing Secretary of Health and Human Services Kathleen Sebelius to move forward on an initiative considered under the Bush administration to evaluate different kinds of malpractice reform through state-based demonstration projects.

However, it is unclear at this point whether the demonstration projects will produce valuable results before a health care bill lands on the president's desk. The president has said he would like to finish health care reform this year, and Sen. Tom Harkin (D-Iowa) said Sunday that Congress will pass a bill by Christmas.

The HHS Department will be releasing details about the initiative within the next month, an HHS official told the Hotsheet, such as how much money will be authorized for the projects and the timeline for the initiative. States will be able to apply for grants for various projects.

On Sunday, Mr. Obama discussed some of the types of malpractice reform that might be the subject of the state-based demonstration projects. However, he discounted the idea of capping medical malpractice damages.

"What I would be willing to do is to consider any ideas out there that would actually work in terms of reducing costs, improving the quality of patient care," Mr. Obama said on "60 Minutes." "So far the evidence I've seen is that caps will not do that."

There are a range of alternatives to consider, the president said, such as having medical experts review malpractice suits before they go to court to ensure they meet some threshold of credibility. Another idea would be to encourage, when appropriate, some form of mediated arbitration in place of lawsuits, he said.

Those two ideas reflect an amendment, written by Rep. Bart Gordon (D-Tenn.), that was adopted in the House Energy and Commerce's health care bill -- the only medical malpractice provision that has been adopted in any of the health care reform proposals before Congress. Gordon's provision would provide incentives to states that implement a "Certificate of Merit" or "Early Offer" program.

Yet while those two ideas represent malpractice reform advocated by a moderate Democrat, Republicans are still pushing for capping damages. Rep. Phil Gingrey (R-Ga.) introduced legislation this year that would strictly limit punitive damages in medical practice cases. Punitive damages would only be awarded if it could be proven a person acted with malicious intent or deliberately failed to avoid unecessary injury. The punitive damages would be capped at $250,000. The bill would also set a statute of limitations of three years after the date of manifestation of injury or one year after the claimant discovers the injury, with certain exceptions.

Gingrey has repeatedly introduced this bill, and in 2005 it passed in the House with strong Republican support and the approval of 14 Democrats.

On Monday, Gingrey sent a letter to the president requesting a meeting on the issue.

"The simple reality is that fear of ambitious lawyers and protracted legal proceedings are directly leading to the ordering of unnecessary tests which help safeguard against frivolous lawsuits, but also raise the cost of health care," he wrote.

Mr. Obama conceded on "60 Minutes" that Democrats and Republicans may not be able to reach an agreement on the specific idea of capping damages.

"I think there's also been philosophical issues and differences about whether or not patients who really have been subject to negligence, whether it's fair to just say to them, 'You know what? You can only get a certain amount no matter how egregious it is,'" he said. "So there's been a philosophical difference within the parties."

Obama on Health Care Bill: "I Own It"

CBSNews.com Special Report: Health Care

Also from 60 Minutes, a discussion about the late Sen. Ted Kennedy with his son and the editor of his memoir.

Kennedy's Son Reflects On Dad's Legacy
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Barack Obama ,
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tort reform
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Add a Comment See all 51 Comments
by mld678 September 22, 2009 1:04 PM EDT
Frivolous lawsuits are ruining our economy and America?s legal crisis is putting employees out of work, raising consumer prices and driving down shareholder value. We need to address the country?s litigation explosion and make the legal system simpler, and fairer. Read about the priorities of Friends of the U.S. Chamber at http://www.friendsoftheuschamber.com/issues/index.cfm?ID=306 .
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by Stevenapoli7 September 15, 2009 9:24 AM EDT
Hospital regulatory bodies need to be brought under control. The Joint Commission is out of control,and intrusive, grossly lowering health care effeciency.
Reply to this comment
by 6591Hou September 15, 2009 8:12 AM EDT
Insurance is transferring risk. The transfer of risk from the consumer to another party for a fee. It is almost automatically an adversarial relationship between the consumer and the insurer.

Insurance complaints are primarily based upon insurance company's attempts to further reduce their contracted risk by questioning, debating, or denying procedures or billing rates.

Exacerbating this issue is insurance fraud which demands manhours, money, and resources to investigate and prosecute.

It could be argued that the lack of uniform procedures and processes across the insurance spectrum creates dissimilar results, and those dissimilar results are what creates consumers who are satisfied with their insurance and those who are absolutely dissatisfied.

Private insurance companies are not non-profit organizations, they must make a profit in order to satisfy their reason for being in business. In order to make a profit they must control costs, but should not be at the expense of not satisfying contracted terms of coverage.
Reply to this comment
by hamiltoningrate September 15, 2009 1:48 AM EDT
Stupid system.///////////////////unless you aint got no money.

usually legal disputes between poorer folks are settled pretty quick, because the lawyers get on the phone and talk it out, quickly. There is no money to pump. Not so if you have assets. This is not the way . We spend too much time, too much money and too much energy with attorneys.
Reply to this comment
by hamiltoningrate September 15, 2009 1:46 AM EDT
PAID by the HOUR ??? We are all being taken for a RIDE.

We truly need to limit what lawyers charge across the board. There should be a set fixed national price , say for a divorce, or a will, or other categories, not this stupid system of getting paid by the hour ! The longer it drags out, the more money they get. The incentive is therefore to mild your wallet and the system until some one cries uncle ! So many cases never get to court because the people go broke first. This is taking away our rights.
Reply to this comment
by alphaa10000 September 15, 2009 3:17 AM EDT
WE ARE NIXONIANS, NOW

hamiltoningrate said, "... We truly need to limit what lawyers charge across the board. There should be a set fixed national price..."
---

No "free market" apostle with hamiltoningrate-- he knows what he likes and what he doesn't, principles completely aside.

With hamiltoningrate, price controls are now kosher. (Where was he during debate about Wall Street salaries and bonuses? Where is he when gas prices rise? Where is he when most of us cannot easily afford health insurance?)

Perhaps it would be just as fair to impose an hourly fee structure on the medical community?

As most of us already realize, so-called "tort reform" made egregious plaintiff awards vanishingly rare, which leaves only the group practices and hospitals still rolling in money.

Why does every major hospital have something under construction? Times must be truly hard for the health care business.

Talk about being "taken for a ride".
by alphaa10000 September 15, 2009 1:21 AM EDT
WE'LL HANDLE THIS PRIVATELY ?

A forum poster said, "Tort reform is desparately needed in this country. It is too easy for someone to sue when they don't understand the underlying basis of medicine and hospital care..."
---

But a courtroom exists to establish that underlying basis. If it can be taught to you, it can be presented to others, as well.

Should people no longer have the right to sue for justice in medical cases, simply because you fear they may not agree with you?

In any event, the "tort reform" you suggest has nothing to do with proper understanding of the merits of a case. Its sole purpose is to isolate and limit the ability of a jury to decide what is just.

"Tort reform" is an effort to limit legal recourse for Americans who happen to be patients.

Put another way, if only technical practitioners have the facts and know the truth, how could they be held accountable under law for their actions?

Professional peers are already allowed in jury cases-- they are called expert witnesses.

Only those who are not satisfied with this approach seem to want a "tribunal", a closed-session adjudication similar, perhaps, to the disciplinary procedures of a medical association.

In other words, "We'll handle this in-house. The public need not inquire further."

This approach would place medical malpractice above the law.
Reply to this comment
by alphaa10000 September 15, 2009 12:47 AM EDT
MALPRACTICE AND "TORT REFORM"

A poster said, "any good doctor today who wants to make money should become a lawyer... there's a lot more money in figuring out what doctors do wrong rather than paying them to do right.
---

Do doctors need to be paid more to "do right"? This claim is false, and slanderous to doctors, in general.

As for theatrical moaning about a wave of medical malpractice suits, the poster already knows the AMA lobby went through state legislatures at least a decade ago in its campaign for what it called "tort reform".

The AMA lobby-- a group representing less than one-third of the 800,000 physicians practicing in this country-- buttonholed friendly, bribeable legislators to secure passage of tort limits (caps) on malpractice damages against physicians, group practices and hospitals.

Their action went well beyond reasonable self-defense. To understand exactly what the AMA and its patrons in the legislature actually did, the phrase "nullification by statute" applies. After the death by medical malpractice of a loved one, grieving family members rarely recover more than the cost of going to court.

Even today-- so successfully have the AMA and GOP legislatively stonewalled malpractice claims by patients-- there is not even a national system of posting names of doctors, alongside malpractice suits made against them.

The matter of malpractice is public record and should be posted as such. The mere posting of a claim is not the point, but to aid prospective patients in assessing the questions they must ask of particular physicians, physician groups and hospitals.

This is literally a matter of life and death. Today, unfortunately, it is easier to find consumer reviews of automobiles and paperback books.

Warning-- those who plan to enter surgery or any other serious treatment should keep in mind the smiling face of a specialist is no guarantee of competence or reasonable safety.

Again, only a publicly-posted track record of malpractice suits filed against a physician or hospital can work toward honesty and patient safety.

Thank the AMA and bribeable legislators for the fact we do not have such a system, now.
Reply to this comment
by alphaa10000 September 15, 2009 12:44 AM EDT
PATIENTS AND PATIENT FAMILIES, BEWARE !

The medical community for the last decade has been blitzed by little-publicized, traveling "legal seminars"-- these professing to help medical professionals avoid litigation.

As innocent as that sounds, some of the methods taught by the seminars are anything but defensive. They cause needless pain and suffering, and are based upon manipulation of patient expectations.

Here is how the methods work--

Suppose a patient and his family rush to the hospital for a critical procedure. They are beside themselves with anxiety, and need all the hope and reassurance possible. While providing emotional comfort seems an easy mission for staff, medical professionals are now told, "Not so fast!-- this is "bad medicine."

The attending physician or other managing professional is instructed to inform the patient's family with a limited or poor prognosis-- "I am sorry, but the outlook is not the best. We'll do what we can, of course, but it appears all four wheels have fallen off. It will be difficult."

What a blow to an anxious family! And what a failure of the oath to do no harm! At hearing such a report, family members have been known to become depressed or violently ill, as a result. But as the seminar tells medical professionals, this is ultimately all to the good.

They are given the following explanation--

"If you promise the moon, but deliver coal and ashes, you probably will be sued by angry relatives, regardless of the effort you made and difficulty of the case.

"If you promise little or nothing-- even advise of the worst-- but deliver something, anyway, and maybe even the sun and moon, combined, you will be hailed as a miracle worker. Even your fees will be received with gratitude."
Reply to this comment
by chitown639 September 15, 2009 12:43 AM EDT
Tort Reform won't cut the cost of Health-care in this country....the way to cut cost is to eliminate the "middleman" insurance companies who are taking 30% off of the top of our 3 trillion dollar health-care system for profit.
Reply to this comment
by notsouthern September 14, 2009 10:45 PM EDT
by brian1920
In Texas we have tort award caps and the malpractice insurance rates have fallen lowering the cost of health care. This is proven data and anybody can check it out.

Brian, point US to some sort of Internet verification that insurance rates have dropped in Texas due to tort reform. Liberals from Texas on board have posted the opposite. Or maybe Brian, you are really a fascist, therefore a liar, as all Republicons?
Reply to this comment
by jsd330 September 15, 2009 12:08 AM EDT
notsouthern point us to some internet verification to prove it didn't. Where is the proof from these liberals you're talking about that posted it. Just admit it, because he's from Texas you hate him. You are the fascist and a racist.
by alphaa10000 September 15, 2009 12:39 AM EDT
PARTIALLY PREGNANT

jsd330 said, "notsouthern point us to some internet verification to prove it didn't..."
---

jsd330, did you attend GOP Rhetoric 101?

Your challenge to notsouthern is not a logical defense of brian1920's proposition, "tort award caps and the malpractice insurance rates have fallen lowering the cost of health care".

By analogy, an argument ensues. Says one, "You are pregnant!"

Says the other, "I am not!"

Says the one, "Prove I am not!"

You are definitely a graduate of the Dichard Cheney School of Logic, which insists "absence of proof is not proof of absence."

By that same logic, it is not proof of anything, at all.
by egalite522 September 14, 2009 10:42 PM EDT
I think the one thing that people keep forgetting is that medical malpractice or tort reform is unconstitutional at the federal level. It is beyond the scope of Congress's power and would never stand up in court. http://www.stupidrightwingers.com
Reply to this comment
by alphaa10000 September 15, 2009 2:47 AM EDT
THE ROBERTS COURT-- JUDICIAL ACTIVISM FOR CORPORATE AMERICA

egalite522 said, "I think the one thing that people keep forgetting is that medical malpractice or tort reform is unconstitutional at the federal level..."
---

Except for the tendency of the Roberts Court to mean-spirited partisanship, masquerading as judicial authority.

Remember, the quartet of Roberts, Alito, Thomas and Scalia are the same court jesters who propose granting corporations full legal "personhood" under the law.

A redefinition under Roberts of the corporation goes against well-established precedent-- in fact, it had no precedent before 1886.

In that year, in the case "Santa Clara County vs. Southern Pacific Railroad", a legal clerk at the Supreme Court placed an obiter dictum statement by the court above and ahead of its official opinion.

Technically, the off-hand, non-binding comment about corporate status was not part of that opinion, but the high court is not limited in how it can create and recognize precedent.

Yet, for Roberts to pump personhood into a legal entity (a "juristic person") constitutes the very "judicial activism" so many GOP bozos whined about with Sotomayor.

Where are these "strict constructionists", now?

More to the point-- CBS, where is Andrew Cohen when we need him? Cohen could do a very nice article on what is going on with the Roberts court and its redefinition of corporate status.

Why is this important? Because corporations under Roberts will become "super-persons"-- even more powerful than they already are.

Corporations already shield normally culpable individuals from prosecution for their actions.

Corporations also wield enormous power by virtue of their very "impersonality".

Under Roberts, corporations will have it both ways.

Not only that, campaign finance laws will be nullified in whole or in part, since corporations will enjoy the same rights of free speech as any American citizen.

This measure will secure the stranglehold of corporate American power on American democracy.

The prospective Roberts activism is already in-process, and a very serious issue.
by brian1920 September 14, 2009 10:20 PM EDT
Amazing, Obama lied yet again. In Texas we have tort award caps and the malpractice insurance rates have fallen lowering the cost of health care. This is proven data and anybody can check it out.
Reply to this comment
by alphaa10000 September 14, 2009 11:29 PM EDT
THE GOP AND ITS LOBBIES-- LYING, YET AGAIN

The lies come from the HMO, AMA and insurance lobbies. Texas was suckered into tort award caps by the same AMA, HMO and insurance lobby that swept through other state legislatures like a plague of locusts, with the single-minded objective of denying Americans the right to sue for damages.

For the record, the AMA speaks for less than one-third of practicing American physicians. The AMA once opposed even Medicare, and is a hotbed of fringe-right GOP operatives.


THE BLACK BOX OF INSURANCE RATES

The HMO, AMA and insurance lobbies put a lot of money in the right legislative pockets-- with many state legislatures, that is how legislation works. What the hospital lobby wants, the hospital lobby gets.

As for the purported connection between liability caps and lower malpractice rates, that result might be expected since limiting actual payoffs to liability claims was the sole objective.

Yet, lowered liability insurance rates do always occur, since liability rates and actual loss experience are not strictly related, as simple cause-and-effect.

As a 2005 Dartmouth study showed, liability rates can RISE when there is no spike in liability awards.

Liability rates are proprietary information-- a black box to the consumer-- and only the state insurance commission has a chance of knowing whether rate increases are merited.

Predictably enough, in too many cases, there is no effective oversight of state insurance rates. State insurance commissions are commonly staffed by current or former insurance industry executives, in a classic conflict of interest.


WHO SUFFERS FROM MALPRACTICE AWARD CAPS ?

Since liability rates are almost entirely the prerogative of the insurer, so-called "tort reform" is a sham to cover a truly consumer-hostile measure.

Capping liability to unreasonably low levels means a patient or his family is sharply limited by what can be recovered when they sue for damages after a genuine case of medical malpractice.

Before caps, these damages once included not only pain and suffering, but economic loss, as well. Now, capped damages are legally limited and often do not compensate for even actual, direct costs of malpractice-- much less pain and suffering, not to mention direct economic loss.

Liability award caps are a tidy bit of self-interest legislation by the insurance community, at the expense of the rest of us. How similar to the deceitful claims of the insurance industry, today, about health care reform-- we end up paying private insurers more, for less.

Of course, medical negligence continues today, as prevalent as ever. Yet, it is now more difficult than ever for a grieving widow to sue for damages-- all, thanks to "tort reform".

Put differently, every doctor wants to avoid litigation, but not all doctors assiduously avoid negligent practices-- even when someone else's life depends on it. This makes liability caps not only consumer-hostile, but a danger to patient life and limb by physicians whose conduct is more than ever beyond dispute.

The folly of the "tort reform" lobby is its scarcely-concealed hypocriay. Most businessmen feel free to sue one another with abandon over the slightest matter-- and do, Even the insurance companies regularly resort to lawsuits. So, how utterly illogical the business of insurance opposes limits on malpractice litigation.

Americans need continued legal recourse for medical malpractice, because malpractice continues today, and at great cost to patients and their families. Malpractice caps take the matter out of our system of justice, and deny Americans their due under the American system of justice.
by alphaa10000 September 15, 2009 12:19 AM EDT
Correction-- "Yet, lowered liability insurance rates do NOT always occur, since liability rates and actual loss experience are not strictly related, as simple cause-and-effect."
by alphaa10000 September 14, 2009 10:16 PM EDT
AMBULANCE-CHASING ATTORNEYS?

Said one forum poster, "The biggest problem with America's health care industry (is) the ambulance-chasing lawyers that drive up health care costs with their malpractice lawsuits... Getting the lawyers out of the health care industry would go a long way in stabalizing costs..."
---

Your comment uncritically repeats propaganda straight out of HMO public relations of 15 years ago, regurgitated in faulty chapter and verse. Unfortunately for you, the insurance and HMO campaign against attorneys was not true then, and is not true today.

The main driver of medical liability insurance premiums for general surgeons, obstetricians and internists, concludes a 2005 Dartmouth study, has little to do with litigation awards. The 20-25 percent liability premium increase seen in 2002, for example, cannot have come from awards that year. The jury award stats simply don't support it.

So where did the malpractice premium increase come from? The study's lead author reminds us insurance is like any other industry. If investment income in 2002 for the insurance industry were disappointing, premiums would have to make up the difference.

And so, they did.

Today, however, liability insurance rates remain anything but transparent. But count on it-- insurers will charge what the market will bear, and blame somebody else for it.

Your bias against attorneys is utterly disingenuous-- in practice, you do not actually oppose all attorneys and litigation, only other people's attorneys and litigation.
Reply to this comment
by jsd330 September 14, 2009 11:51 PM EDT
Doctors are still ordering more tests then are needed,to protect themselves from some ambulance chaser, which drives the cost of health care up.
by alphaa10000 September 15, 2009 12:18 AM EDT
MORE CHAPTER AND VERSE FROM THE INSURANCE LOBBY

jsd330 said, "Doctors are still ordering more tests then are needed... which drives the cost of health care up."
---

Your point is snake-tongued chapter-and-verse from "tort reform" lobbyists, who try to present their package as a benefit to consumers by supposedly reducing the CYA of superfluous medical testing.

Little did you realize (wink, wink), this medical testing is another profit center for the same people whining about "self-protective" testing. To such people, no amount of medical testing, by definition, is ever enough.

And, somehow-- as surely you realize-- this is yet another case of 30-year-old "trickledown" reasoning-- "reduce our costs and we surely will reduce your costs".

That is, consumers are supposed to benefit from a capped liability. However, regardless of loss experience, rates keep rising-- as the Dartmouth study showed.
by random_radar September 14, 2009 9:15 PM EDT
When the government runs health care, do you think they will let you sue for malpractice when they would have to pay the settlement?
Reply to this comment
by jsd330 September 14, 2009 9:20 PM EDT
They don't sue the health insurance companies, they sue Doctors, nurses, hospitals.
by bcpats September 14, 2009 9:21 PM EDT
Maybe that's it- - with the thought of Obama and his government controlling healthcare, of course there would not be a need for TORT reform....... no lawsuits - - who is going to try and sue the gov't???
by tmittelstaed September 14, 2009 7:48 PM EDT
Boy a lot of people here are stupid.

Obama floated the idea he might do tort reform WITH a cap for one reason - to see if the Republicans would make a deal on health care. Well, obviously what he got back from the Republicans was no, we aren't willing to make a deal. So, now Obama is retracting the offer.

We are going to see health care reform with or without you dumb neocons. And now from the looks of it, we are going to see it without you so you won't even get anything at all.

Spoils system, dufuses.
Reply to this comment
by kevjustice September 14, 2009 8:21 PM EDT
Republicans=The party of NO!
by jsd330 September 14, 2009 8:27 PM EDT
That was quick, telling me he was never serious about it to begin with.
by bcpats September 14, 2009 9:14 PM EDT
tmittlestaed; - - you said -- "Obama floated the idea he might do tort reform WITH a cap for one reason - to see if the Republicans would make a deal on health care. Well, obviously what he got back from the Republicans was no, we aren't willing to make a deal. So, now Obama is retracting the offer."

HUH ????? It was the Republicans that put the TORT reform in the bill that has been shot down by Obama.
TORT reform IS putting a cap on malpractice and frivolous lawsuits.
But you say Obama "put it out there" -- like "baiting"????? Guess you just have to blame the Republicans for Obama's "no". hmmmmm
by brian1920 September 14, 2009 10:22 PM EDT
so socialized medicine does what? it costs more because the inefficiencies far outweigh the 3% profit insurance companied make, increases waste and fraud, creates another enslaved group of people whose votes can be controlled, and it helps Obama maintain power which was the real goal.
by bcpats September 14, 2009 7:43 PM EDT
Tort reform is one thing the Republicans have consistently asked for and put in versions of the health care reform bills - - - to be consitently turned down by the dems. With a cap on the malpractice suits and guide to limit frivolous lawsuits - - the doctors' malpractice insurance premiums would not be as astronomical as they are now. What a novel idea ! ! ! But the president says "no"........ ! ! ! ! (and the right gets called the party of no) hmmmmmmmm.

Guidelines, guidelines, guidelines - - NOT government CONTROL.
Reply to this comment
by jsd330 September 14, 2009 7:12 PM EDT
If it's the doctors fault, they still sue the hospital,nurse's and anybody else they can get a few bucks out of. The more money in the settlement, the more the lawyer makes.
Reply to this comment
by keystonebull September 14, 2009 7:10 PM EDT
Obama lies all the time. Never read an article that he does not lie in it. He is the first President that I have never had any faith or respect in. None at all. Frankly I think most people now feel this way.
Reply to this comment
by woeisme1 September 14, 2009 9:28 PM EDT
Yeah sure he does. Sure he does.
by payback108 September 14, 2009 6:28 PM EDT
He is a lawyer and you know what they say about lawyers
Reply to this comment
by endurorob_4 September 14, 2009 6:22 PM EDT
mav547166 September 14, 2009 6:19 PM EDT
The rules should just say that the plaintiff gets 100% of the winnings, and the lawyer gets $20 an hour. That will get rid of the vultures for the most part. Think about it President Obama is not going to cap any pay for his buddies. This is the number one reason why we need insurance to start with.
Which vultures are you speeking of? The lawyers or the patients?
Reply to this comment
by woeisme1 September 14, 2009 6:28 PM EDT
by endurorob_4 September 14, 2009 6:22 PM EDT


Great question there endurorob. Really. Good question. I'm not being a smart donkey.
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