Tort Reform: The Devil is in the Details

During the Big O’s televised, 45-minute pep-talk on health reform last week, one of the few instances in which Republican lawmakers rose up in support occurred when he tipped his cap in the general direction of the medical malpractice conundrum.

But alas the applause was tepid, as the President’s proposal to promote state-level experimentation with tort reform fell short of the Republicans’ preference for a federal limit on malpractice lawsuit payouts.

Obama winged something out about "demonstration projects,” and the next day, White House officials scrambled to provide additional detail on the matter.

In one such experiment, which is already underway in several states, patients would be required to gain approval from a panel of medical experts regarding the merits of the case before they could file a claim.

Another one, modeled after an idea floated by then Senators Obama and Clinton, involves physicians disclosing mistakes early, apologizing and negotiating a payment with the patient. An “early apology” pilot had been funded by HHS during the George W. Bush administration, it turns out, though it was limited to patients receiving care at federally funded clinics and was not associated with grants to states.

So far, the White House has provided no additional information about the proposal, such as how much money would be available, which states would qualify for the grants, how many experiments there would be, or when they might start.

In approaching tort reform this way, the Big O is running a gauntlet between Democrats, who traditionally want to maintain patients’ rights to sue, and Republicans who have tried for decades to limit corporate and physician liability.

And despite Republicans' polite applause during the speech, Obama's olive branch is not likely to persuade a single one to support his larger health reform agenda.

Republicans, with long-standing support from American Medical Association, believe the threat of litigation forces physicians to undertake excessive medical testing as a means to defend themselves, and that this, in turn drives up costs.

Last December however, the Congressional Budget Office reported there was no "consistent evidence that changes in the medical malpractice environment would have a measurable impact on health care spending."

Among the bevy Congressional health reform bills in play at the moment, only the one passed by the House Energy and Commerce Committee addresseses the malpractice issue. It has a provision that calls for Federal funding of state initiatives designed to overhaul the tort system. It contains no caps on payouts and is thus eerily similar to the little bone Obama tossed to his Right last week.

Glenn Laffel, MD, PhD
Sr. VP Clinical Affairs, Practice Fusion