Health Dealmakers Look at Malpractice

Congress Explores Ways to Fulfill Obama's Offer to Try to Curb Litigation Costs in Health Care

(AP)  Following President Barack Obama's offer of compromise on an issue that has long divided Washington, congressional health care negotiators are considering proposals to foster alternatives to medical malpractice lawsuits.

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 wouldn't 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.

CBSNews.com Special Report: Health Care

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 don't need because they're afraid of getting sued.

Obama's 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 doesn't see malpractice changes as a "silver bullet," he's talked to enough doctors to suspect that fear of litigation contributes to unnecessary costs. He's directing the Health and Human Services Department to provide funding for pilot programs to test some alternatives to litigation.

"I hope this signals a commitment to meaningful malpractice reform," said Sen. Mike Enzi, R-Wyo., one of only three Republicans in the Senate still negotiating with Democratic counterparts seeking an elusive bipartisan compromise.

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 there's been significant movement," said Dr. James Rohack, president of the American Medical Association. "The physician community has said it's a problem. The Republicans have said it's a problem. And now you have a Democratic president who says it's time to deal with this."

Trial lawyers say no further action is needed from lawmakers.

"It shouldn't 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 Obama's 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. Both are being promoted by Rep. Bart Gordon, D-Tenn., a longtime supporter of malpractice curbs whose amendment authorizing such tests was incorporated in the House health care legislation this summer.

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 can also be a panel that 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.

Gordon and Enzi are both interested in broadening the experiment to include health courts that would focus mainly on malpractice cases. The lawmakers believe such specialized courts could be structured to protect the rights of aggrieved patients and their families, and would probably deliver speedier verdicts than the current system.

The trial lawyers are working to head that off. "We don't think that doctors and hospitals need special courts," said Lipsen. "It's a slippery slope. First you have a court for doctors, and then what? A court for plumbers?"

Nonetheless, Gordon says he doesn't see any justification for limiting the experiments with other ways to handle malpractice cases. "I certainly think the door is open now to discussion of any kind of legitimate alternative," he said.

Full CBSNews.com coverage of the president's speech on health care:

Obama Tells Congress to Stop Bickering
Full Video Full Transcript Speech Highlights
GOP Response: "It's Time to Start Over"
Marc Ambinder: Will Obama's Sales Job Work?
Mark Knoller: Obama Willing to Compromise - Up to a Point
Was Obama Clear on the Public Option?
Ted Kennedy's Letter to Obama
Rep. Wilson Apologizes for Obama Speech Outburst
Analysis: The Road Ahead for Health Care

[actornaught]

Of course, under a good Public Option, medical treatment caused by bad doctoring automatically gets cheaper anyway. It becomes No-Fault, as it were, and malpractice settlements would've gone down anyway. And that point can be made out in the open because neocons & the neo-conned won't hear it, see it or think it. They're just going to keep talking talking talking, then the Dems will finally pass reform, and whatever malpractice reform happens will just be something the 'pubs will point out as they desperately try to get reelected.

[hungry1968-16]

by Stevenapoli7 September 12, 2009 3:49 AM EDT
How about demo project on government run health care? Oh yeah, it was tried in Maine, Mass, and Tenn and failed big time. So why adopt the failure?







The main reason that it failed in Mass and Tenn was because they tried to create a hybrid system of government and private insurance company cooperation.

Then the private insurance companies merged creating a couple of REAL big insurance companies, they collectively raised their rates, and the states were left holding the bag to pay the newly raised, significantly higher premiums.

The ONLY way to get REAL REFORM, is to get the insurance companies out of the mix altogether. You won't get real reform with them being involved.

[hungry1968-16]

by JJleaf September 11, 2009 11:28 PM EDT
Proudofmycountry,
I ask that you, and everyone else on here do a little research and see who wins the case in the vast majority of medical malpractice cases.







Easy - the lawyers and insurance companies "win".

They BOTH make a fortune off of this sham system, and all that it does is pilfer money that SHOULD be used on actual medical procedures.

[Stevenapoli7]

Obama is a dark lord of the Sith. He is using the recession to sensationalize a "crisis" just like Darth Sidious took control over the senate to pass his evil agenda in a time of upheaval. He is moving this great country away from free markets, capitalism, and meritocracy to one of federal control, handouts, bailouts, takeovers. My advice: Don't over regulate and don't under-regulate.

[Stevenapoli7]

How about demo project on government run health care? Oh yeah, it was tried in Maine, Mass, and Tenn and failed big time. So why adopt the failure?

[chonder2]

Steven-Apparently you have been in a coma for a year, Here we are cleaning up a deregulated/Repub/Senator Phil Gramm/economic MESS and all you can do is throw bottles and cans at the Janitor!!

[babooph]

Yes ,we must be sure no insurance co will pay out any benifits-the execs misstress needs that 5th ave apt,he needs the newer personal jet & best country club & mansion available,while his Philippine staff rejects claims for a percent of the take.

[huegorgan]

Let's get the gun nuts to sign off on "gun reform". The sacred cow of right and left wing HICKS, Article II..."Golly, I'm an American, the Constitution says I can have all the guns I want." If only they could read past Article II...
I'm sorry to break the news but our Founding Fathers assured ALL Americans their God given right to sue in Article VII of the Constitution.
Medical malpractice reform is a thinly veiled guise to do away with our God given right to sue our neighbor for whatever reason we want. It won't stop with doctors. No. It'll move to basket weavers, quilt makers, scuba divers, farmers...where will it end. Pretty soon NO ONE will be held accountable for negligent actions.

Come one people. Malpractice insurance has NOTHING to do with our exorbitant cost of health care. You think plaintiff's lawyers are the only one's who benefit from malpractice lawsuits. Defense attorneys on retainer to insurance companies make their money by dragging out the process. It's called billable hours. These deadbeats couldn't find a shingle to put their name on if it wasn't for insurance companies.

Put in a government run, single payer system and malpractice claims will disappear.

[Stevenapoli7]

How wrong u r. OBGYN doc puts up $200,00o up front for malpractice insurance.

[crispy-gmx]

As was said on the Bill Maher show tonight, maybe the Democrats should make a deal with Republicans and say "we'll sc-ew our lobbyists and support Tort Reform, if you agree to sc_ew your lobbyists, and vote for health care reform!

[JJleaf]

I just knew it! Those greedy lawyers are are what is running up our medical costs. I am sure it is their fault that doctors and drug companies are making a fortune prescribing children ADHD drugs. And that is just one example!

[kansas1946]

Malpractice insurance has been a major contributor in driving up the costs of medicine. There is nothing wrong with a person getting damages in a law suit, but the punative awards were way out of proportion to damages. Of course, those punative awards are lawyers bonaza because they take large percentages of them, and guess who makes up most of the house and senate. Lawyers. So because of their selfish guarding of this sacred golden calf, they have allowed medical costs to spiral out of reach for many Americans. It is time to deal squarly with punitive damages in medical mal-practice and any legislator that fights against that is only thinking of their wallet and their lawyer frieds wallets and certianly not the American citizen.

[wmsshields]

Right out of an Orwell novel: where else but in a house of representatves controlled by a majority of habitual name-calling liars could you find a member threatened with punishment unless he apologizes to a habitual liar, for telling the truth, and have the truth called name-calling?

[kansas1946]

Proof right here of the collective IQ of the Republican party. No ideas, no solutions, no morals, no values, no intellegence, no nuttin' but comments fed to them by Rush. Ditto heads is right.

[hockeymom441]

ok - another thing they should "look at". The reimbursements are far from smart or appropriate:
Some docs are still taking advantage of the system:
Some dermatologists only take off set number of moles at a time b/c beyond that, they don't get reimbursed (forcing numerous office visits)... others specialists perform diagnostic test all the time of folks that don't really need them but because they reimburse high amounts of money: cardiac catherizations, EMGs, biopsies, etc.

Why should a dermatologist make $500 in a half an hour and family doctor make $50?!? Certainly they're both smart... their training is the same length! It makes no sense; yet insurance companies pay this.

We need to reward docs who work hard, and make a difference in a patient's life-long health costs/outcomes (family doctors, primary care, etc) and pay them accordingly. Doctors who order unnecessary tests should be punished, not rewarded w/ exponentially higher incomes than the honest ones.... and yes, I'm sorry - my diabetes is much more important than acne.

[joeybergas]

but still a 90% chance you caused your own diabetes.....

[smac761]

Look Congress- we don't want your "Deals". We are contending with the aftermath of your "deals" adnausea. Here's the message: FIX THE THINGS THAT SHOULD NOT EXIST- WASTE, FRAUD, GRAFT, FAVORS TO SPECIAL INTEREST, CORRUPTION, UNNECESSARY REGULATION, NUISSANCE LAWSUITS, ENTITLEMENTS TO THE LAZY AND UNREGISTERED. THESE REQUIRE NO NEW PROGRAMS- THEY ARE WHAT YOU WERE ELECTED TO DO. DO IT OR RESIGN.

RE-ELECT NO-ONE IN '010

[hologram5]

UNNECESSARY REGULATION?
It was everyone's buddy Herr McCain that brought the financial sector to their knees by repealing the glassman/steagall act which deregulated wall street and the banking industry. Do some research and verify your posts first, makes you look like you know what you are talking about.

[rightbehind]

We'll that's sound territory. I can't stand those commercials where the lawyers advertise have you taken this drug if so you may be entitled to get money. That stifles innovation and probably kills a lot of good drugs from further use. By all means work on the lawyers and litigation but the public option better be there!