Last week the American Medical Association came out against the most important part of President Obama’s health care reform proposal — public health insurance that would compete with private insurance plans. Now there are reports that President Obama is considering “reducing malpractice lawsuits” as a bargaining chip to get the AMA on board with the public plan.
Sheryl Gay Stolberg and Robert Pear report for the New York Times that President Obama “views addressing medical liability issues as a ‘credibility builder’ — in effect, a bargaining chip that might keep doctors and, more important, Republicans, at the negotiating table.”
The AMA has a decades-long history of protecting the interests of the private medical industry and opposing all public programs. In the 1960s, for example, the AMA fought hard to defeat Medicare. As I wrote last week, the AMA’s primary function is to protect the profit margins of the health care industry.
Health care reform and tort law are issues many link together into one, but how they are linked depends on where one stands politically. Conservatives fervently believe (contrary to any empirical evidence) that “tort reform” will reduce health care and insurance costs and must be included in any health care reform package.
People who have suffered injury from malpractice see things differently, of course. Also there are many who have injuries and diseases from unsafe workplaces or environmental contamination, such as mesothelioma resulting from asbestos exposure. And then there are those pesky things called “facts.” The facts are that “tort reform” often does reduce malpractice insurance premiums in states that enact it, it has never, ever, not even once, reduced health care costs in those states. The savings to physicians are not passed on to patients, nor do physicians order significantly fewer tests or procedures after the threat of nuisance malpractice suits is lifted. So much for “defensive medicine.”
As of this writing it is not clear how the President might reduce malpractice lawsuits. He does not have a history of supporting caps on jury awards, as did his predecessor, George W. Bush. However, in 2005 Senator Obama voted for the Class Action Fairness Act (CAFA), which among other things placed limitations on attorneys’ fees in coupon settlements.
Also in 2005, senators Obama and Hillary Clinton co-sponsored a National Medical Error Disclosure and Compensation Act (MEDIC), which did not become law. MEDIC would have created a program to seek early compensation for patients and offer liability protections to doctors in exchange for acknowledgment of their errors. According to Stolberg and Pear, the President has been talking about “offering some liability protection to doctors who follow standard guidelines for medical practice.”
Dr. J. James Rohack, the incoming president of the AMA, said that he is encouraged by the President’s “recognition that defensive medicine contributes to unnecessary health costs.” Whether so-called “defensive medicine” is a factor in health care costs at all is a question, however. As I’ve written here before, there is no empirical evidence that physicians change their practices in any way when the threat of malpractice litigation is reduced.
It’s also important to understand that reducing physicians’ malpractice insurance rates, while certainly a welcome benefit for physicians, has no impact whatsoever on the overall costs of health care. We see this in states such as Texas, in which significant decreases in malpractice insurance rates have been accompanied by significant increases in health care costs and health insurance rates.
However, getting the AMA on board with the health care reform proposals probably would make passage of a meaningful health care reform bill a lot easier. Let’s hope President Obama can find a way to soothe the AMA without bargaining away the rights of citizens to sue for damages in court.
Update: USA Today is live-blogging the President's remarks to the AMA today. Here's a relevant part:
The audience roars and whoops when the president says he sympathizes with doctors who "feel like they are constantly looking over their shoulder for fear of lawsuits." The president tries to curb the enthusiasm: "Hold onto your horses." Obama says he's not in favor of capping awards in malpractice suits because he thinks that can cheat some people who have been harmed. But he says curbing malpractice costs for doctors "is going to be a priority for me."
I'll look at the transcript when it's available to see if he says anything more specific.
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Comments
American medical practice is to make super sure. How do you change it to a culture of 'good enough.' My son broke his arm in Bulgaria. The break was close to the growth plate, the doctors didn't think it damaged the growth plate. They set the bone and that was that. They took one before x-ray and one after x-ray.
My daughter broke her leg in the US. The break was near the growth plate, but the doctor didn't think it was likely to be a problem. He ordered 2 x-rays and a CAT scan to be sure, then sent us off to a Pediatric Trauma specialist in Boston the next day to be sure. The bill for the one hospital visit was $2,000.
But in the end, when it's your kid, do you really want to go from 100% sure that the growth plate is undamaged and the limb will continue to grow with the child or do you want to be just pretty sure?
It's not just American medical practice that says we have to be 100% sure. It's American culture, too.
Add to that the $100M pledge by the US Chamber of Commerce to defeat the agenda. It's mind-boggling to me why anyone would NOT want reform in this country.
Excellent piece.
Rated
1. MedMal "reform" does not lower insurance costs. It hasn't here in California, anyway.
2. Juries are loathe to find doctors liable. Of all Americans, we still put doctors on the highest pedestal. They are our heroes. We entrust our very lives to them, and most of us adore our own doctors. Juries want to maintain the myth of doctor omnipotence, and will find any reason they can NOT to find for a malpractice plaintiff.
3. It would be bad for healthcare and for patients to limit medical malpractice lawsuits because those lawsuits are the only effective check and balance we have. Medical industry self-policing is not effective, and often covers up known problems. The only way of making sure doctors are paying attention is to hold them accountable.
4. No one wants to have the threat of lawsuits hanging over them, and doctors naturally fear them. But just because doctors want to be immune from suit is not a good reason to do that. Medmal reform has not kept insurance premiums down. In California, where we have had limits on medmal suits for years, health insurance premiums have skyrocketed, and malpractice coverage for doctors continues to climb in cost.
5. In order to maintain a medical malpractice lawsuit, you first need to have a doctor who is an expert in the particular field review the facts and determine that malpractice has occurred. You can't maintain such a lawsuit without that "due diligence" and the agreement of an expert in the field. And doctors are historically reluctant to testify against each other. So there is a measure of filtering that goes on, already.
6. Limits on medmal lawsuits just leave injured patients without adequate compensation for injuries caused by the medical negligence of doctors. People can be catastrophically injured such that their lives are effectively destroyed, and the doctor walks away, the insurance company pays little, and the patient is left to suffer for the rest of his life with costs that are now his own expenses to bear.
7. Bad malpractice suits get tossed out, and the losing plaintiff is responsible to pay the costs of the winning doctor.
8. It's a phantom issue, in my experience, cooked up by insurance companies who are in it for profit. And the only one who has an economic stake in such litigation is the insurance company. The doctor has none, except for whatever deductible he may have chosen.
A doctor who took out the wrong kidney, leaving the cancerous one intact. Of course, it then had to be removed, and the patient needed dialysis 3x/week thereafter and had a strictly restricted diet. He died four years later from calcification of the organs that occurs on dialysis. Dialysis patients have only about a five-year life expectancy. Jury award for the defendant doctor, the jury finding that the patient could have died from heart problems anyway.
Patient is admitted to the hospital. The doctor writes instructions for potassium to be given "IV drip." Only thing is, he writes down "IV push" because he's in a hurry, which means that the entire amount of potassium was injected into the patient all at once. This caused the patient's heart to malfunction and he died. The 42-year old patient was the sole breadwinner for his wife and four daughters. Jury verdict for the surviving family in the amount of $85,000 which was less than the insurance company paid me in attorneys fees. I later bought the family a car so that the teenage daughter could get a job and help support the family, and was ashamed at how thankful they were for the gesture.
A guy is brought into a small hospital emergency room by ambulance. He is having trouble breathing, his body is blown up like a balloon and he has abdominal pain. Turns out he's got a perforated bowel and esophogas, which was quickly killing him. He required immediate emergency surgery. But the attending physician in this hospital doesn't want this guy to die on his watch, so he spends precious hours looking for a bed elsewhere, trying to transfer him to another hospital. As a result, the patient doesn't get the needed surgery and dies. Verdict for the doctor, because he told the jury that the guy would have died anyway, so it didn't matter that he didn't call a surgeon, as the protocol required.
I could go on and on. These are doctors and hospitals I defended, and ever since doing that I am thankful that we have a robust legal system that at least minimally holds these guys accountable. What I learned is that there are many, many doctors out there who are bad, arrogant and careless, and you have to be really careful who you choose when you have a life-threatening condition.
The old adage is true, as it turns out: Q. What do you call the guy who graduates last in his medical school class? A. "Doctor."
But the Right has done a bang-up job persuading people that the health care and legal system are being hamstrung with nuisance lawsuits. Nearly everyone in America sincerely believes some woman got millions of dollars from McDonald's merely for spilling coffee on herself, for example. (Not true, and not true.)
Start a conversation about health care costs anywhere in America, and count the nanoseconds before someone blames the costs on lawsuits. This is true even though the cost of malpractice awards is less than 1 percent of all health care costs, and even though empirical evidence suggests "defensive medicine" is a myth.
One thing -- malpractice insurance premiums do go down in most states after tort reform, even if it didn't happen in California. However, I've seen good arguments that insurance industry reform could effect the same result much more reliably.