Spelling relief: Advocates of medical malpractice reform urge action now

November 1, 2009
Bob Gatty

Bob Gatty is a former congressional aide, covers Washington for a number of business and professional publications.

As the healthcare reform debate unfolds, most of the headlines have focused on whether there would be a "public option" and, to a lesser extent, how the various proposals would affect Medicare, including patients and providers.

Key Points

Virtually lost in the months-long discussion is an effort by advocates of medical malpractice reform to advance their cause, and obtain some form of relief from the steadily increasing cost of premiums and the negative impact of defensive medicine.

The American College of Surgeons (ACS) and the Alliance of Specialty Medicine have been among the organizations representing physicians that consistently urged lawmakers to include medical liability reform provisions throughout the process in both the House of Representatives and the Senate.

Throughout the process, amendments were offered in both chambers to provide malpractice relief, and, in mid-September, President Obama ordered the Department of Health and Human Services (HHS) to provide demonstration grants to states, localities and health systems for the development, implementation and evaluation of alternatives to the existing system.

"We should explore medical liability as one way to improve the quality of care and patient-safety practices and to reduce defensive medicine," President Obama stated in a memorandum to HHS Secretary Kathleen Sebelius.

"We must put patient safety first and work to reduce preventable injuries," the president said. "We must foster better communication between doctors and their patients. We must ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits. And we must work to reduce liability premiums."

Critical issue

In communications with lawmakers, both the ACS and the Alliance urged that provisions that would provide various measures of relief for physicians be part of the ultimate healthcare reform package.

"We urge the (Senate Finance) committee to address this critical issue as an important tool for helping to stem the tide of rising healthcare costs by including commonsense, proven, comprehensive medical liability reform provisions," the ACS stated in a Sept. 22 letter to the panel's chairman, Sen. Max Baucus (D-Mont.).

Those provisions included:

Meanwhile, a little-noticed provision contained in the House Committee on Energy and Commerce's health reform package would make states eligible for a federal incentive payment if they produce an alternative medical liability law that meets the secretary of Health and Human Services' approval. To obtain approval, each state's tort reform program must:

State programs could also provide mechanisms by which potential malpractice cases would first receive a "certificate of merit" on whether the damage involved was sufficient and wrongful enough to go forward. They could get extra credit in the consideration process if they included a system by which health providers recognized errors resulting in harm to patients and made "early offers" of restitution.

AAD perspective

While that provision was not included in the bill considered by the Senate Finance Committee, American Academy of Dermatology (AAD) President David M. Pariser, M.D., in a Sept. 21 letter to Sen. Baucus, stated the academy "appreciates the inclusion of a provision that recognizes the vital need for medical liability reforms."

Dr. Pariser said the AAD supports federal funding of pilot projects to determine the effectiveness of liability reform alternatives, such as health courts, early disclosure and compensation programs, administrative determination of compensation models, expert witness qualifications, and liability protections for use of evidence-based practice guidelines.

At press time, indications were that the healthcare reform issue would not be resolved until late November. Whether medical liability provisions would be included was impossible to predict.

Suggestions were floating around Capitol Hill that the House amendment to provide states with incentives might be the basis of a compromise that can find its way into law, and generate some progress on this front.

Bob Gatty, former congressional aide, covers Washington for businesses specializing in healthcare and related issues. Contact him at bob@gattyedits.com
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