According to an article in the NYTimes, the answer is yes. President Obama is actively considering some form of limits on med mal lawsuits as part of his health care reform plan.
Before we get too excited about this, let’s consider what is on the table, and why.
Reports indicate Obama is going to mention med mal reform in a speech to the AMA this week. The group has long advocated for limits in the form of caps on settlements and ‘frivolous’ lawsuits, claiming that med mal forces physicians to practice defensive medicine thereby driving up costs.
The reality is more subtle, and less problematic. A comprehensive study indicated that the cost of malpractice insurance as a percentage of total practice expenses changed little over the last 30 years, ranging from 6% to 11% of total expenses. This doesn’t mean that docs in certain specialties and specific geographic areas aren’t affected differently, with some faced with significantly higher costs and fewer insurer options. But these issues are largely driven not by high settlements and ‘frivolous’ lawsuits but rather by the mechanics and motivations of the insurance market.
In fact, when insurance premiums were soaring in the early years of this decade, awards weren’t increasing at all. While premiums increased 120% from 200 to 2004, claims were flat while the insurers’ incurred loss ratios (ratio of claims to premiums collected) improved by almost 25% to 51.4%.
There is ample evidence that malpractice and medical errors are much more prevalent than the number of claims filed would indicate. The vast majority of patients injured by error — perhaps 98% percent — never press legal claims.
Equally troubling, “46 percent of physicians surveyed admitted they knew of a serious medical error that had been made but did not tell authorities about it.”
And according to an exhaustive study published in the New England Journal of Medicine;
“For 3 percent of the claims, there were no verifiable medical injuries, and 37 percent did not involve errors. Most of the claims that were not associated with errors (370 of 515 [72 percent]) or injuries (31 of 37 [84 percent]) did not result in compensation; most that involved injuries due to error did (653 of 889 [73 percent]). Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy — nonpayment of claims associated with errors.”
[readers interested in a detailed and authoritative discussion of the topic should read Maggie Mahar’s treatise]
OK, so the med mal monster is more of a med mal midget that casts a very long shadow when the AMA shines it’s “lets make this thing look scary” light on it.
That doesn’t answer the central question; Why is Obama willing to take on trial lawyers, many in his own party, and reality?
Simple – another very valuable bargaining chip. Politics is the art of making the other guy do what you want by giving him just enough so he can hold his nose and vote for your bill. Obama is seeking to kill two birds with one political stone. His openness to ‘med mal reform’ steals a big chunk of the AMA’s thunder, and his solution – eliminating/reducing litigation/awards for physicians who follow evidence-based clinical guidelines – helps to enforce those guidelines.
Remember the battle over comparative effectiveness (CE)? The final bill was pretty watered-down as the legislative compromises necessary to get it done removed a lot of the ‘enforcement’ opportunities. From here it looks like the bill itself was the first part, and the ‘enforcement’ is going to be linked to med mal reform.
By tying med mal to physician use of evidence-based clinical guidelines, Obama is painting the physician lobby into a very tight corner, one they can’t get out of without politically-untenable contortions.
UPDATE
from Peter Rousmaniere comes this link to an excellent article by Drs. Michelle Mello and Troyen Brennan about the role of medical liability reform in health care reform.
Here’s an excerpt:
“create a federal “safe harbor,” retaining the current process of adjudication but insulating physicians from liability if they adhered to evidence-based medical practices. For example, legislation introduced by Senator Ron Wyden (D-OR) in February would create a rebuttable presumption that care was not negligent if the physician followed accepted clinical practice guidelines.5 Similarly, physicians could be given immunity or a favorable presumption if they practiced in accordance with findings of credible comparative-effectiveness research (CER).”
Jun
15
We limited medcial malpractice in Texas several years ago. Have health insurance premiums gone down? No. They’ve gone up at a higher rate than the national average. Why? Because our physicians do NOT perform services because they are worried about malpractice (i.e., so-called “defensive medicine”); they do all of those things because they get paid for each and every one of them–and they will continue doing as much to every patient that walks into the waiting room as the insurers or the patients will pay for.
Let me tell you a story. On Christmas Day, 1969, I had my appendix removed. I was 7 at the time, and the ER resident basically poked around until I winced and denied strenously that it hurt, told my parents that my appendix had to come out, and promptly called my pediatrician to tell him that I needed a surgeon within a few hours.
Total time between examination and sugery: about 3 hours. It would have been sooner, if it hadn’t been a holiday.
In 2007, I took my wife to the ER with pain in the location where my scar is. The ER physician said that the most likely ailment was appendicitis. I said that I had the figured out about 10 hours earlier, when her pain first started. The doctor said he wanted to rule out every thing else. So he ran various tests and even ordered a CT scan. The CT scan was inconclusive, because my wife’s appendix was “hiding.” Between the ER physician and our family doctor, they called in a surgeon who removed the appendix.
Guess what? My diagnosis was right. Her appendix was inflamed.
Time between entering the ER and sugery: seven hours. Extra cost for tests: around $3000.
I truly believe that doctors would be more willing to treat patients without running every test known to medical science, if they didn’t worry about malpractice.
When doctors ask what I do for a living, I tell them I’m a lawyer. They either glare at me or look worried. I then tell them that I practice corporate law, commercial litigation, and real estate, and they all breathe a sigh of relief.
My family’s old doctor, who retired in 1968, swore at me in 1986, when I mentioned that I was clerking at a med-mal firm. When I told him that the firm did insurance defense work, he apoligized. But the point is that doctors detest malpractice and feel that attorneys have made the practice of medicine a practice of covering their you-know-whats, rather than determining the ailment in a timely manner and proscribing a treatment.