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

Curbing medical lawsuits: What Obama really means

[cnn-photo-caption image= http://i2.cdn.turner.com/cnn/2009/images/09/11/art.obamasept11.gi.jpg caption="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. Chuck in CSG

    "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.

    That would be a sum total of 1, maybe 2 – if you count a PhD.

    September 11, 2009 01:43 pm at 1:43 pm |
  2. Garrett

    It has me scratching my head too. Obama doesn't do REAL bipartisanship.

    September 11, 2009 01:44 pm at 1:44 pm |
  3. Sian

    What the President needs to do is come right out and say: " Placing limits on Malpractice award amounts will have a direct effect on the cost of healthcare".
    As the amounts awarded to victims of malpractice has risen, the cost has been passed on to consumers. Insurance companies across all industries feel the pinch caused by doctors raising their rates to afford premiums for malpractice insurance. Health insurance companies pass the increased amounts on to private consumers because their largest client " the government" gets the best collective bargain. That's why government employees at every level get the best coverage at the cheapest rates.

    September 11, 2009 01:44 pm at 1:44 pm |
  4. Al

    If the government wants to get involved with health insurance then may I suggest that the government underwrite malpractice insurance for physicians and regulate jury awards along with attorney fees? And require panel mediation prior to trial and/or settlement. People are people and when the economy is bad, certain folks look for opportunities at any available venue whether it is an adverse effect from a medication or a slip and fall at Wal-Mart. No apology will suffice for some folks because they weren't looking for compassion in the first place, just an opportunity to hit the jackpot.

    September 11, 2009 01:44 pm at 1:44 pm |
  5. Tony

    oopps looks like Soros called NOBAMA and told him he better back off.

    September 11, 2009 01:47 pm at 1:47 pm |
  6. unshrub

    The ONLY increase in medical liability over the last 10 years has been an increase in insurance premiums. Insurance payouts has not increased overall in the last 10 years, but insurance premiums have increase. WHY WHY WHY.

    September 11, 2009 01:52 pm at 1:52 pm |
  7. buckwheat

    Lawsuits got Obama where he is now. Why would he want any difference in the make up of lawyers power? Lawsuits is the reason this country is broke. No one will take a chance on anything with leeches ready to attach to the nearest blood supply. Their money elected him.

    September 11, 2009 01:59 pm at 1:59 pm |
  8. panem et circenses, but CNN won't post

    Texas at the dawn of this decade was considered one of the nation's most hostile medical liability states. Rampant medical liability lawsuit abuse and runaway jury awards drove liability premiums to spike up to 128 percent. The increase forced many physicians and their staffs out of work, leaving entire counties without access to specialized medical services and critical care.

    The Lone Star State took action in 2003 after citizens and legislators became fed up with the havoc personal injury lawyers and trial attorneys wreaked upon patients and the medical community. Lawmakers passed and voters overwhelmingly approved Proposition 12, a constitutional amendment that placed reasonable limits on noneconomic damages – limits ascertained that patients who truly were harmed by medical malpractice would receive fair and just compensation but provided a disincentive for lawyers to file frivolous lawsuits.

    The results have been tremendous. Almost every major medical malpractice insurer in Texas has made double-digit rate cuts. More than 7,000 physicians have returned or migrated to Texas. The Texas Board of Medical Examiners was so overwhelmed with new physician applications it had to acquire a special appropriation from the legislature to hire more personnel. Many areas where patients had no access to care now have fully staffed facilities.

    September 11, 2009 02:00 pm at 2:00 pm |
  9. Dave

    It's don't go as far as the GOP might like but he's meeting them half way why can't they meet him the same.

    September 11, 2009 02:01 pm at 2:01 pm |
  10. buckwheat

    The only ones that get anything out of class action lawsuits are lawyers.Get ole John to explain how it works.

    September 11, 2009 02:04 pm at 2:04 pm |
  11. debbie

    Only a moron would refuse to use a good idea just because the opposition party had come up with it. Our President is FAR from moronic. He has demonstrated himself to be a highly-principled man who cares more about doing a good job than kowtowing to the party faithful. How refreshing, and how ironic that his insistence upon reaching concensus and doing the right thing for the most put-upon group (the middle class) gives rise to the hate-mongers who convince said middle class to bite the very hand seeking to feed it.

    September 11, 2009 02:05 pm at 2:05 pm |
  12. Bob

    As an attorney, I understand that trial lawyers often get their bread and butter from high judgments to cover soft costs, like 'pain and suffering'. As a public servant, I understand that these judgments do not adequately replace what the patient has endured. Though I have been wary of President Obama's meager bipartisan efforts, I am proud that he can put his efforts behind a bipartisan response. No one knows for sure what the best answer is, but a pilot program is good evidence to determine whether it could work on a larger scale.

    September 11, 2009 02:14 pm at 2:14 pm |
  13. Hugo

    What this really boils down to is that trial lawyers lobbyist groups are the primary donors to the Democratic campaign machine. Obama doesn't want to cut off the cash supply, so he will initiate with their approval some type of benign tort law reform that really wont do squat. The Democrats will squeal that although they are bought and paid for by the trial lawyer lobbyists that the Republicans are also on the take from big Insurance lobbyist groups. Bottom line is I thought Barry the Usurper was going to CHANGE all of this so that our society could actually function in a sustainable condition, I guess he lied!

    September 11, 2009 02:15 pm at 2:15 pm |
  14. b

    Mobius,

    CNN needs to explain it to pea brains like you. No offense, just telling it like it is.

    September 11, 2009 02:18 pm at 2:18 pm |
  15. pete

    Funny, I heard no pledge to "tackle" medical malpractice. In this instance, CNN ignores the substance of Obama's comments, which is empty, and gives him credit for making a pledge.

    We are not as dumb as you look.

    September 11, 2009 02:25 pm at 2:25 pm |
  16. grammy11

    I'll be going to the hospital soon for cataract surgery. The hospital
    called me for a pre-op appointment. This was an absolute waste of time and government money. All of the information was already in their computer data base and updated printed info presented from my own computer. I was made to sit there while my printed info was entered into their computer. All of the actual pre-op tests were already done in the doctor's office. Now I wonder how much they will bill Medicare for that wasted time. This could have been done by mail, over the phone, by fax or on the date of surgery. My doctor has all of the information updated so why can't they share? Maybe this is done for what they refer to as "judgement proof" because of so many lawsuits. I still can't understand why, except for money, this was done.

    September 11, 2009 02:26 pm at 2:26 pm |
  17. Laura in KS

    The atrocious grammar and spelling used in most of these comments makes it very difficult to actually take them seriously. If you are such a dunce as to not be able to spell simple words that most 3rd graders could get right, and you are not able to form a coherent sentence, then you probably don't actually know what you are talking about. Perhaps instead of ranting and raving about things above your comprehension, you should try reading a book or taking some online classes or anything to increase your intelligence. Then maybe we can have a civil and factually accurate debate.

    September 11, 2009 02:28 pm at 2:28 pm |
  18. Cin

    I think that injured parties should be compensated for pain and suffering, but that it should be limited to PHYSICAL pain and suffering.

    Let's face it, no amount of money will compensate for the loss of a loved one, or an accedent that has marred you in some way.

    The most that should be expected in those kinds of damages are that the party that caused the injury should pay for psychiatric care to try to help the emotional portion of an accident.

    There are people in this country who have to drive hundreds of miles to have their babies because of the malpractice issues, and Drs who do deliver babies often cause more harm in their practice of "defensive medicine". Not every pregnancy and delivery requires every tool and test available and it really needs to be weighed against the outcome.

    It is also because of malpractice worries that Drs and midwives who would like to and are trained to deliver babies at the mothers' homes are not able to do so. This is truly trajic when you consider that the mother has been acclimated to her enviroment & passed those immunities to her child, then she leaves to the hospital environment... where they keep sick people and this vulnerable pair are subjected to massive amounts of germs they would normally not be exposed to.

    A very large portion of infants and new mothers are lost to hospital born infections, it is a very large reason for our poor ranking in infant mortality rates.

    September 11, 2009 02:36 pm at 2:36 pm |
  19. joe

    Careful all of you libs on this web site who are trashing Attorney's. Trial Attorneys are the number one backers of the Democratic partry.

    Go Joe Wilson

    Obama told at least 13 lies in his speach. I know this must make me a raceist becuase I disagree with the President.

    September 11, 2009 02:47 pm at 2:47 pm |
  20. the health industry will try everything

    because they spend too much money on marketing for it ever to be their fault

    do not fall for the smoke screen

    September 11, 2009 03:14 pm at 3:14 pm |
  21. annette

    How does CNN know what The President means? I believe you are again making things up, Yes!
    CNN is getting really good at making things up, like the "terrible scare shooting on the river this am" NOT,
    Loke not telling truths abour how Miller has raised double of what Wilson has raised since Wilson completely shoot off his mouth.
    Like Dobbs being an indipendant, NOT, he is as right wing nuts as the rest of all CNN, so sad.

    September 11, 2009 03:18 pm at 3:18 pm |
  22. Barb

    Let's face it.... THERE IS NOTHING that President Obama can do which will not be trashed by the GOP!!!...

    Wilson's apology was elicited by the GOP and was insincere – therefore a LIE...

    Racism is rampant and rabid. Isn't it interesting that the same school district in Texas which did not show the President's speech to the children, is now... going to bus children to a stadium to hear former President Bush speak?.... C'mon call it like it really is!

    Now the President is considering tort reform of some kind... which is what all the vitrolic Republicans have been calling for, and he's wrong for that!!!

    If you don't agree with your President... that's your right, but for God's sake, treat him with respect.

    Don't think for a moment that the rest of the world is not watching this debacle of childish and hateful behaviour.

    September 11, 2009 03:22 pm at 3:22 pm |
  23. Simonsays/Orlando

    Lawyers make up to a 40% profit on any med/mal cases that is settled. Why not limit their commission? Remember, this 40% is coming out of our pockets in the form of higher medical costs. Let's go straight to mediation. Cutting attorneys fees out of the mix would save us all a lot of money.

    September 11, 2009 03:27 pm at 3:27 pm |
  24. Tina

    I hear so much (especially on Ireports) from conservatives and republicans that Obama and Pelosi refuse to listen – well, he's listening and making a compromise. Your turn; how about a public option for those who CHOOSE it?

    September 11, 2009 03:46 pm at 3:46 pm |
  25. steven harnack

    The Republicans always get loud about personal responsibility until it's time to BE responsible.Seems to me it's another insurance problem with competent doctors footing the bill for incompetent doctors and the insurance companies end up with the loot.

    September 11, 2009 03:53 pm at 3:53 pm |
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