Obama's Medical Malpractice Solution

Curbing lawsuits

Now that the dust is settling on Wednesday night’s speech to Congress about health reform, CNN, among others, is taking a look at what President Obama meant by tackling medical malpractice.

Here is what he said:

"I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs."

Reducing the number of medical malpractice lawsuits is generally considered Republican territory and part of “tort reform” - curtailing lawsuits in general against corporations that harm the public, such as tobacco, asbestos, and pharmaceutical companies.

While many states have placed limits or caps on the damage awards patients can receive from medical malpractice lawsuits, Mr. Obama has suggested funding pilot projects in states to encourage patient safety instead of limiting lawsuits.

Apologize and Disclose

One plan would encourage doctors and hospitals to disclose errors they make and then apologize to patients.

CNN reports when the University of Michigan Health Care system did just that for a seven year period beginning in 1999, malpractice claims dropped by 55 percent.

Stopping errors before they happen meets with the approval of the lawyer’s lobbying group, American Association for Justice (AAJ). "If you really want to solve the health care crisis, you need to focus your efforts on saving lives," said Linda Lipsen, the AAJ's top lobbyist. "That's where the most cost savings are."

But the Center for Justice & Democracy, a nonprofit that educates the public about the civil justice system, points out the flaws in the Michigan apologize approach.

Michelle Hereford’s 44-year-old husband was killed after his bowel was perforated during surgery, and fecal material spread into the rest of his body giving him a fatal case of sepsis. While the UM hospital apologized in a letter to Michelle for her “additional stress” it didn’t go much further.

“It was a canned letter,” said Hereford. “It was not an admission, and it wasn’t a denial. They’re minimizing their risk.”

Hospital Panels

For patients who are among the 100,000 to 200,000 killed every year by avoidable injuries - hospital negligence, infections, a missed diagnosis, or prescription overdose - another provision would require a hospital panel be convened to essentially agree the lawsuit had merit before proceeding to court.

The obvious downside is the panel could be stacked against the patient or have an ingrained disincentive to pass it onto litigation.

An alliance of consumer groups, last July said the “Certificate of Merit” law is unworkable because it requires the patient to find health care providers to certify that every act or omission caused the patient’s injury.

“Requiring a patient to find a healthcare provider to certify that every act or omission alleged in a complaint is the proximate cause for the injury is virtually impossible and means legitimate cases will not go forward, especially given that claims will the dismissed “with prejudice” if the certificate is not completed and filed,” says the Center in its blog, Pop Tort.

In addition the group says the “early disclosure” provision has problems if the injured patient is pressured to accept a low-ball offer from the insurance industry.

Litigation Insurance

A 2002 Institute of Medicine study suggests reducing lawsuits by offering backup insurance to doctor groups who disclose their mistakes and compensate patients who are injured. But pain and suffering awards should be limited, it says.

The other option suggests compensated injured patients based on a formula, while offering health care providers immunity against lawsuits.

The Congressional Budget Office (CBO) says that even when medical malpractice lawsuits are curbed, they don’t have any real affect on health care spending.

In June, the president told the American Medical Association that patients already hurt by medical malpractice would be further hurt by lawsuit reform.

The Center for Justice and Democracy and its project – Americans for Insurance Reform – is a coalition of public interest groups that seeks better regulation of the insurance industry that continues to charge doctors high medical malpractice premiums, even in states where lawsuit awards have been capped or limited. #