HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, July 3, 2009

Medical Malpractice Reform as a part of Health Reform

RollCall reports on the push to make medical malpractice reform part of the overall health reform legislation:

The Senate Health, Education, Labor and Pensions Committee’s markup of health care legislation is just the latest skirmish in what has been a long-standing partisan battle — the fight to change medical malpractice laws. The issue has long been a fixture of legislative fights over health care policy....

Republicans have long argued that the system is weighted against doctors. They say that limitless damage awards lead to crushing insurance costs for doctors, who pass them along to patients, and that physicians are practicing defensive medicine, which drives up health care costs through unnecessary treatments. Sen. Judd Gregg (R-N.H.) argues that reforming this system will help drive down health care costs and expand coverage.  “We cannot possibly reduce the cost of health care in this country without reducing defensive medicine,” he said....

Democrats reject this argument, countering that the current system is necessary to protect patients from medical mistakes that can cause them irreparable harm.  “I honestly really don’t see this as a health care issue,” said Sen. Sheldon Whitehouse (D-R.I.). Instead, the Senator, a former Rhode Island attorney general, argued that medical malpractice is more of an “intruder” into the debate to protect insurance companies, hospitals and doctors from being accountable for their mistakes....

Some observers say the American Medical Association and other doctors’ groups could put pressure on Democrats to accept some sort of reform in exchange for their support of health reform. However, Gregg said, “Medical providers have never been able to organize enough of an offensive” to force change.

A Republican Senate aide agreed. If the reform bill includes changes to medical malpractice, it will infuriate trial attorneys. A better way to go might be to focus on changing doctors’ Medicare reimbursement rates, the aide said. Doctors have also fought to increase these rates and, unlike tort reform, there is no powerful lobby opposing that issue....

However, the White House has shown some willingness to explore the issue. Obama told AMA members in June that some medical malpractice reforms were necessary as part of health reform.

“I recognize that it will be hard to make some of these changes if doctors feel like they’re constantly looking over their shoulders for fear of lawsuits,” Obama said.

Meanwhile, the AMA is moderating its goals for reform beyond caps on damages, given Democratic control of Congress....

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