September 11th, 2009
11:45 AM ET
5 years ago

Curbing medical lawsuits: What Obama really means

Curbing medical lawsuits: What Obama really means.
Curbing medical lawsuits: What Obama really means.

WASHINGTON (CNNMoney.com) – As President Obama turns up the heat on health care reform, one new and surprising detail to emerge is his pledge to tackle medical malpractice.

"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," Obama said Wednesday night.

Obama's decision to wade into the issue has some insiders scratching their heads, because cutting down on medical malpractice lawsuits is a
Republican tenet.

But the president's idea of reducing health care costs by cutting down on lawsuits isn't the same as Republicans, who want to cap lawsuit damage awards. Instead, Obama plans to run with an idea left over from his predecessor's administration and fund pilot projects in states that trumpet patient safety.

In one approach, the Department of Health and Human Services would fund projects aimed at limiting lawsuits by encouraging doctors and clinics to disclose accidents early and apologize to patients when appropriate.

Experts point to the University of Michigan Health Care system as a potential model. Malpractice claims in the system dropped by 55% between 1999 and 2006.

"If we make a mistake, we'll move quickly to apologize and compensate that patient. But if we didn't make a mistake, we talk to the patient and explain," said Richard Boothman, chief risk officer for the University of Michigan system.

As the Obama administration knows well, medical malpractice can be a sticky issue. When the discussion centers on lawsuit damages, it pits two deep-pocketed lobbying groups against each other: trial lawyers and big business.

Advocates like the U.S. Chamber of Commerce and hospital and doctor groups say that lawsuits, especially frivolous ones, drive up the cost of
health care by increasing the cost of doctors' malpractice insurance.

Trial lawyers counter that limiting their ability to hold doctors and hospitals accountable for mistakes won't reduce costs.

More neutral agencies like the Congressional Budget Office say that efforts to curb medical malpractice lawsuits can prompt cheaper malpractice insurance premiums but don't really affect health care spending.

In June, Obama told the American Medical Association that he was not an advocate of lawsuit caps, which he said can "be unfair to people who've been wrongfully harmed."

Despite his legal background, Obama hasn't always sided with lawyers on legislation targeting the court system.

In 2005, he voted with Senate Republicans to pass a law that limited attorneys' fees in class action suits and shifted most of those cases into
federal courts to prevent attorneys from seeking more favorable state-court venues.

On Wednesday, the president made it clear that he brought up medical malpractice as a sign of good will to the "Republican side of the aisle."

That irks some left-leaning Democrats. Rep. Keith Ellison, D-Minn., said he didn't see the need to address the issue, which is often called "tort
reform."

"But you know, if the president wants to discuss tort reform - fine. I am not going to die on that hill," Ellison said.

The next wave of controversy depends on the kinds of medical malpractice pilot projects the Obama administration agrees to fund.

If the projects aim to stop and prevent medical errors and accidents before they happen, the trial lawyers' lobbying group, the American Association for Justice, is on board. If the measures limit liability, that's another story.

"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."

The American Medical Association was more guarded in its reaction, but the doctors lobbying group applauded Obama's intent to address malpractice lawsuits as a way of cutting health care costs.

An administration official said the types of things they're looking to fund include two proposals contained in one of the health care reform bills now in Congress.

One resembles what the University of Michigan already does, where hospitals and clinics disclose errors and apologize when at fault. Meanwhile doctors are well-insured against lawsuits.

"I've the luxury of saying to our physicians, no matter how big a case is, how bad a case is, 'You're completely insured and your personal assets are not at stake,' " Boothman said. "You can't ask them them to be totally honest when they have such things at stake."

The other provision would require patients who want to file lawsuits to get a panel of experts or doctors to agree their lawsuit has merit before they go to court.

But if the Obama administration is truly thinking of running with Bush administration ideas, they'll look at a 2002 Institute of Medicine study aimed at cutting malpractice suits.

That study offered recommendations that have yet to surface in current health care policy discussions.

In one, the federal government would offer backup insurance to provider groups who disclose mistakes and compensate patients for avoidable injuries. But the report also recommended that participating states limit pain and suffering awards.

The other option gave health care providers "immunity," or protection against lawsuits if they agreed to participate in a government-run
administrative system that compensated injured patients, mostly based on a formula.

William Sage, a doctor and attorney who advised the Institute of Medicine, said the 2002 recommendations fit well with the president's pledge,
because they attack malpractice lawsuits from the bedside instead of the courtroom.

Sage said he expects that such medical malpractice reforms will go beyond pilot projects and make it into final legislation.

"This year it's different," said Sage, vice provost for health affairs at the University of Texas at Austin. "We have to have major long-term changes, so malpractice proposals have to appeal more broadly. They have to gain the confidence of a large number of medical physicians and make them think about their work differently without always being afraid of being sued."


Filed under: Health care • President Obama
soundoff (109 Responses)
  1. Maria - Proud Democrat

    If the President is serious about health care reform then he needs to ensure the bill he signs REDUCES the COST OF MEDICATION.

    That is the biggest expense and the reason many seniors and middle class people die....because they can't afford the medication.

    The Pharmaceutical companies are the biggest abusers and should be stopped.

    REDUCE THE COST OF OUR MEDICATION......it will save lives!!!

    September 11, 2009 03:58 pm at 3:58 pm |
  2. Deborah Black

    Dr's need to be careful and know that patient's have rights to sue them; if Drs are at fault for death or injury. If your life is taken, your family should have the right to sue for as much as they can be awarded by a jury. If, you are maimed, or your life is radically altered by medical malpractice, you should have the right to sue those at fault for whatever a jury finds justified. That is why we have a jury system, so that things can be evaluated and penalties determined, by every day people. I agree if lawsuits are blatently silly, and have no legal justification; then make the person who sued pay the court costs and attorney fees; but a jury should decide that as well. Our legal system does not need to be biased any more that it already is toward the rich and big corporations.

    September 11, 2009 04:10 pm at 4:10 pm |
  3. Bill

    "Dont blame me:
    September 11th, 2009 12:45 pm ET
    We have TORT reform here in Texas and it has help tremendously and we have a lot doctors moving to Texas from other states that have no TORT reform

    Not only has it helped keep costs down, but it PUNISHES REPEAT OFFENDERS, as it should."

    Actually, tort reform in Texas hasn't lowered costs by any measurable amount. The city with the highest health care costs is *in Texas*, and the health of the people there isn't any better than any other part of the U.S. Tort reform is fine, but just a simple cap on malpractice rewards isn't the answer. It has actually done a lot of harm in Texas, where, for example, an elderly victim of sexual assault by a registered sex offender, employed by the health care facility the victim was at, only received $50,000 by suing. Money won't take away the pain of a rape victim, but $50,000 is adding insult to injury.

    The idea of attacking malpractice costs at the bedside is the most effective solution. Texas-style tort reform is a bad example to follow.

    September 11, 2009 04:11 pm at 4:11 pm |
  4. ericka

    Willy Brown, it doesn't matter if you believe Obama is concerned about America and its people. Americans elected him the President and that's that. Many of us felt the same way about Bush, but we didn't act tacky and redneckish.

    September 11, 2009 04:18 pm at 4:18 pm |
  5. Stu

    There is absolutely no reason, for any lawsuit, to award "punitive" damages. All that amounts to is powerball lottery money for the plaintiff and the attorney. All civil lawsuits should be limited to strictly "actual" damages, period, end of story. Plaintiff attorney fees should be limited too. One-third or more of the award is ridiculous, it just lines the pockets of lawyers.

    September 11, 2009 04:27 pm at 4:27 pm |
  6. dak

    Republican party . . . . .shrinking, shrinking, shrinking . . . . POOF! . . . it's gone!

    September 11, 2009 04:30 pm at 4:30 pm |
  7. Michael Hsu

    From growing up in poor area (read: predominately black) of california, I developed a healthy distrust of those types of people. I can say that 'bama hasn't changed my preconceptions one bit – in fact he reinforces that distrust every time he speaks.

    When he "says" he'll do something, I know that in his dark hateful heart he means the exact opposite.

    This recent "support" of tort reform means that he actually doesn't want tort reform.

    September 11, 2009 04:47 pm at 4:47 pm |
  8. roger

    You cannot seriously expect doctors to stop ordering excessive tests to cover their butts unless the reason for doing so is corrected. It has been documented over and over that juries award huge iffy settlements based on the fact that docs carry large insurances. This in turn raises the insurance rates and the amount the doctor must charge to meet those increases! To avoid lawsuits, MD's must order otherwise unneeded tests to cya. This is not to excuse the insurance co.'s, they will try to find various other ways to gouge the public.

    September 11, 2009 04:50 pm at 4:50 pm |
  9. Jane/Seattle

    The exploration of ideas is crucial to finding our way out of this abyss. We so often do the wrong things to appease the views of others. Many of us long for a day when leadership can sit down together like the proverbial lion and the lamb and work for solutions rather than EGO-building, bank account building or influence from partisans. With my maturity and knowledge, I am very skeptical that most in power now will ever act in our collective best interests. Competition, Ego, Suppremacy, Domination, and finally Money have been given a life all their own. As many conservatives/Neocons believe that government should be small, limited, and as the propaganda goes is just totally Incompetent. This IS A major LIE for the vacuum to be filled with the many lobbyists who now control and write the legislation we must tolerate screaming, but seldom heard, for our rights as we watch our country slide downhill. These all have their mantras and ideas. In my lifetime, None have truly succeeded in taking the Right Correct Actions for us/this world. Take a little look around you if you think we are a great nation anymore. We are being downsized to maximize profits. This is not just me who says this but a huge rousing chorus. We, who have been diappointed our whole lives by rhetoric, now want to see Results, and then we will believe that there is gonna be hope and change. Times tells all stories if we can read it right! Peace

    September 11, 2009 05:22 pm at 5:22 pm |
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