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The move by Washington lawmakers and the White House to reform the nation’s health care system has caused heated debates from the floor of Congress to town halls across the country.

But while issues such as a proposed government-run health insurance option have dominated the debate, another issue – medical malpractice reform – went largely unaddressed. That is, until now.

Medical liability reform quickly moved from a sleeper issue to a hot-button one in the days leading up to Congress’s return from summer recess, and trial lawyers have become a central focus.

A YouTube video of comments made by Democratic National Committee chairman Howard Dean at a Virginia town hall meeting went viral in late August, drawing the attention of the news media and tort reform critics and proponents. In the video, Dean addresses an audience member’s question about tort reform.

“Here’s why tort reform is not in the bill. When you go to pass a really enormous bill like that, the more stuff you put in it the more enemies you make, right?” Dean said as some members of the crowd audibly booed and one man stood and held his nose.

“And the reason that tort reform is not in the bill,” Dean continued, “is because the people who wrote the bill did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth.”

In a Sept. 3 opinion piece in Politico, Newt Gingrich and Wayne Oliver of the Center for Health Transformation seized on Dean’s comments, writing: “While the White House and the Democratic leaders in Congress don’t want ‘to take on the trial lawyers,’ they are apparently willing to fight with the doctors, the hospitals, the drug companies, the health insurance industry and even the American people on health reform.”

Before the recent uptick in discussions over tort reform, the issue was largely unaddressed by Congress.

President Barack Obama told members of the American Medical Association that medical malpractice reform would be on the table in any health care reform negotiation, but stressed in July that he was against liability caps, saying at a town hall meeting:  “I don’t like the idea of an artificial cap on somebody if the doctor or the hospital was really negligent.”

Debate over impact

Tort reform proponents say the increased discussion of liability reform demonstrates the public’s concern about the issue, and hope take it makes lawmakers and the president take an honest look.

“The issue of medical liability reform is really heating up – all you have to do is look at the comments being made at town hall meetings,” said Matt Webb, senior vice president for legal reform policy at the U.S. Chamber of Commerce Institute for Legal Reform.

But officials at the American Association for Justice, the nation’s largest trial attorney group, dismissed the criticism, saying that reforming the medical liability system will not result in the kind of cost-cutting the health care reform proposal is seeking to realize.

Pointing to studies conducted by the Congressional Budget Office as well as by the U.S. Government Accountability Office showing that limiting medical liability would save little, Linda Lipsen, Senior Vice President of Public Affairs at AAJ, said such proposals will only end up hurting patients injured by medical malpractice.

“The CBO and GAO have both acknowledged that changes in [medical] malpractice [laws] will lead to practically no savings, and only limit the legal rights of patients injured through no fault of their own,” Lipsen said.

She said the real savings would be in preventing medical errors, and that is where the focus of reform efforts should be. According to an AAJ report, medical errors are the sixth leading killer of Americans. Damage awards are not paid in the absence of medical error, but a large number of medical errors are never compensated, the AAJ contends.

“We should be focusing on preventing medical errors in the first place,” Lipsen said.  “This will fix the problem on the front-end: making patients safer by limiting the amount of malpractice that occurs, and therefore, lowering costs.”

Incomplete picture

Webb said that the studies cited by AAJ don’t tell a completely true picture of potential cost savings because they don’t account for “defensive medicine” being practiced by many physicians.

Doctors, fearing lawsuits if a patient has a negative outcome, become overly cautions, ordering more expensive testing and other procedures that drive up the cost of health care dramatically, Webb said.

The Institute for Legal Reform estimates the cost of such cautionary procedures to be between $70 billion and $126 billion per year.

“If you decrease the amount of frivolous litigation that is out there in the medical sphere, you end up driving down the overall cost of health care,” Webb said.

And, he said, reform doesn’t have to include liability caps.

“If meaningful medical liability reform is included in the overall health care reform package, we would view that as a positive,” Webb said.

This might include the use of health courts to resolve med-mal claims, he noted.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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