Debt Panel Proposes Medical Malpractice Changes

Deep in the report released today by President Barack Obama's debt commission is a proposed overhaul of medical malpractice liability.

The commission is advising Obama and Congress on a plan to cut the federal government's debt, and the 59-page report by the commission’s leaders suggests the government could save about $2 billion a year with major changes to the liability system.

According to the report, “Most experts agree that the current tort system in the United States leads to an increase in health care costs. This is true both because of direct costs — higher malpractice insurance premiums — and indirect costs in the form of over-utilization of diagnostic and related services (sometimes referred to as ‘defensive medicine’).”

The report by co-chairmen Erskine Bowles, a Democrat, and Alan Simpson, a Republican, proposes several changes that the full commission is expected to consider Friday. They include a statute of limitations of “perhaps one to three years” on medical malpractice lawsuits, the creation of specialized “health courts” and new rules favoring health-care providers that “follow best practices of care.”

“Many members of the Commission also believe that we should impose statutory caps on punitive and non-economic damages, and we recommend that Congress consider this approach and evaluate its impact,” adds the report (PDF).

Like other parts of the report, the proposal has the potential to rally opposition by influential constituencies — in this case, the nation’s trial lawyers and consumer groups.

Gibson Vance, president of the American Association for Justice, which represents trial lawyers, is calling the proposal “dangerous,” “radical” and “simply unacceptable.”

“Not once does this report mention patient safety and solving the epidemic of medical errors that plague our health care system, costing thousands of lives and billions of dollars each year,” Vance said in a statement today. He’s a partner at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.

Vance cited recently released studies, including one in an issue last month of The New England Journal of Medicine, finding that harm from medical errors continues to be a significant problem. “The adoption of this commission report will leave Americans with an unsafe health care system that is less accountable and more costly,” Vance said.

Darren McKinney, a spokesman for the American Tort Reform Association, which favors changing the system, said the report is encouraging even if it’s only a recommendation from the co-chairmen. “You’ve got to start somewhere, and we’d certainly endorse any recommendation for reasonable liability reforms as a good place to start,” he said.

A draft that Bowles and Simpson released Nov. 10 contained two sentences on the subject and fewer specifics. The draft proposed to “pay lawyers less” by enacting caps on “non-economic and punitive damages” and other changes to tort law.

Updated at 12:44 p.m. with Vance's statement.

Comments

[Stephen]

This is totally unconstitutional since the VII Amendment guarantees us a right to a trial by jury for any claim in excess of $20.

[George]

@ Brian - FYI - We call them plaintiffs, not "the prosecution" in civil suits which are the focus of this "reform".

[Steve Graves]

Our system is designed to hold us accountable for our mistakes, i.e. make us pay for the harm we do on account of our negligence. Doctors should be no exception, and of course neither should lawyers. Our system, including the right to trial by jury, may suck, but it represents centuries' worth of effort toward actual justice, and it does a better job of approximating justice than any other system there is. Look closely and you'll find that most of the people who spend their money and efforts trying to persuade us that jury awards are too large are either (1) on the business end of those awards (i.e. those who have done harm to others and their insurers), (2) have a misguided sense of resentment toward the injured people who receive the awards (or their lawyers) or (3) identify with tortfeasors and their insurers in the sense of "I don't want to pay more for my own insurance (or taxes, or healthcare) just so somebody else can be repaid for his loss," which is more an objection to the concept of insurance (loss spreading) than to the size of damages awards. Though we may be secretly motivated by the feeling that "I don't mind losses being compensated; I just don't want to contribute," that's not a legitimate position to take unless you reject the idea of loss spreading altogether. The things doctors do are often dangerous, the stakes are high and when they screw up the results can be disastrous. We shouldn't try to balance our budget on the backs of people who've been maimed, incapacitated or killed by medical (or any other kind of) negligence.

[James O'Hare RPLU AIC AIS]

From med mal claims guy since 1985:
Real reform:
A jury of peers for docs, maybe a college degree to offset their 12 years of post HS education.

Loser pays the attorney fees of the other side.

Unaccepted reasoned offers, or settlement demands is another trigger to pay the others fees, if a jury award trumps the demand -or - doesnt reach the offer.

Caps for pain and suffering only. This is the only subjective and unmeasurable element of damages.

Sliding scale for plaintiff attorney fees.
use arbitration to speed things up.

I have a long list, but since there is so much money involved, screams for reform will not be heard.

Dont get me started on healthcare: dumpt mcCarron ferguson so that I can buy HC coverage from anyone. Watch the price and performance effects when competition rules the day. If Hank Ford had no competition, we'd still be in model T's

jim O'Hare RPLU AIC AIS
VP claims
Physicians Ins co
Pompano Fl

[John Vail]

A cap on damages applies, ironically, only to meritorious lawsuits, ones in which liability has been proven and damages found. It acts as a tax on people who are severely injured, transferring wealth from them to parties who have been proven to have screwed up. Punitive damages are almost never awarded in medical malpractice cases; that issue is a red herring, and the fact that it is invoked undermines the credibility of the proposal.

[Curt]

The problem with the existing system is a lack of accountability for errors in which a physician's judgment was flawed and resulted in harm. The existing system is notorious for paying-out even when no error occurred and leaving victims without compensation in the face of egregious errors. The claim that reducing the threat of malpractice litigation will leave America with a dangerous and unaccountable health care system is motivated by the threat to malpractice attorney income than by a true desire to improve the system. The malpractice system predates the focus on patient safety of the last 10 years. Since it has obviously failed to produce a safe health care system, there is no reason it should be granted sacred cow status.

[Brian]

All that needs to be done to cut out the frivolous suits without merit is to make the prosecution responsible for the defense costs and doctors' lost wages while defending themselves if the case is found for the defense.