President Obama's mention of medical liability reform in his recent health-care speech to Congress was encouraging to supporters of reform, though it was short on details of what the administration plans to do about the issue and when.
A transcript of the speech contained one paragraph acknowledging that defensive medicine might be contributing to spiraling health-care costs and directing Secretary of Health and Human Services Kathleen Sebelius to move forward on state demonstration projects "on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine."
The administration followed up on the president's promise Sept. 17 by announcing $25 million in grants for states and health-care systems to test alternatives to expensive malpractice litigation.
Sen. Max Baucus (D-Mont.), chairman of the Senate Finance Committee, supported state demonstrations in his health-care bill, drafted by a six-member bipartisan committee and called "America's Healthy Future Act of 2009." It encourages states to "develop and test alternatives to the current civil litigation system as a way of improving patient safety, reducing medical errors, encouraging the efficient resolution of disputes, increasing the availability of prompt and fair resolution of disputes, and improving access to liability insurance, while preserving an individual's right to seek redress in court."
Though Obama's support of liability reform was widely seen as a conciliatory gesture toward Republicans, it was "enough to open the subject and have us advocate for more specific actions," said Dr. Fred Ralston, an internist in Fayetteville, Tenn., and president-elect of the American College of Physicians.
"In this time where we are looking at all causes of spiraling health-care costs, it is an excellent opportunity to revisit tort reform, which has been stalemated for years at the federal level," Ralston said. "We would encourage the president to look at these suggestions and adopt reforms which are shown to work at the state level. Nothing, including caps on non-economic damages, should be off the table as the costs of medical malpractice and defensive medicine are ones we all pay."
ACP, along with other major medical organizations, has supported funding for state and local demonstration projects that test ways to expedite dispute resolution and reduce litigation costs. In a policy statement approved in July, the College endorsed:
- A $250,000 cap on noneconomic damages as well as unlimited recovery for future medical expenses and loss of future earnings
- Limitations on punitive damages
- Periodic payment of future damages
- Elimination of double payment of awards (collateral sources)
- A reasonable statute of limitations on claims
- A sliding scale for attorney's contingency fees
- Proportionate liability among all parties
Though Democrats have traditionally opposed malpractice reform because of the impact on patient rights, some in Congress applauded Obama's move to include changes to malpractice law as part of overall health reform.
"The administration is going to move forward with my proposals immediately, test them out in a number of states and, as I understand it, develop a national policy to effectively reduce frivolous lawsuits," Rep. Bart Gordon (D-Tenn.) said in a statement posted Sept. 10 on his Web site. Gordon, who worked on the issue as chairman of the House Energy and Commerce Committee, has supported an initiative tested in Tennessee that provides incentives to states that implement a "certificate of merit" or "early offer" program as alternatives to going to court.
Dr. Richard Neubauer, an internist in Anchorage, Alaska, who's an ACP regent and chairman of its Health and Public Policy Committee, said he was happy to hear the president comment on liability reform and to acknowledge the high cost of doctors practicing defensive medicine.
"The current system also rewards attorneys disproportionately to those allegedly injured, is not efficient at driving quality of care and creates an atmosphere that is not conducive to robust peer review that could prevent future medical errors," Neubauer said. "Demonstration projects would be at least a start to help unravel how changes in the medical liability system might help create a better future."
The president's comments seemed particularly appreciated in such states as Florida, where medical liability rates are highest.
"Nothing will get the doctors fired up faster here than proposals to change the laws regarding professional liability insurance," said Dr. Frederick Turton, a Sarasota, Fla., internist who chairs the ACP Board of Regents. "Accordingly, the addition of med-mal reform to a health-care reform package would be useful in swaying the hearts and minds of Florida doctors toward supporting health-care reform."