United Press International (UPI Wires)
WASHINGTON, Jan. 6 (UPI) — Malpractice reform is back on the hot seat — President Bush pushing hard this week for caps or limits on non-economic damages. The House has passed such legislation but Senate Democrats have repeatedly rebuffed efforts and despite losses in November, they still are able to muster 60 votes to stop legislation.
Sources tell HealthBiz there is new momentum — new support from some on the Democratic side — that could result in some type of legislation being passed this session. Sen. Majority Leader Bill Frist, R-Tenn., has pledged to bring malpractice legislation to the floor quickly.
Before the debate denigrates into political theatrics, with accusations the trial lawyers are in the back pocket of the Democrats and the physicians are the same with the Republicans — it’s a good idea to look at whether damages caps will accomplish what the Bush administration says they will.
The White House’s Fact Sheet on malpractice issued Wednesday said: “President Bush‘s framework for addressing the medical liability crisis in America seeks to make healthcare more affordable and accessible for all Americans by making the medical liability system more stable and predictable, and to protect patients by reducing the disincentives for reporting medical errors and complications.”
The key part of that is “reducing the disincentives for reporting medical errors and complications” because many malpractice experts believe reform must be tied to industry efforts to reduce medical errors. In fact, legislation should go beyond reducing disincentives and actually create incentives for reporting medical errors because then, finally, there can be healthcare system changes that reduce the likelihood of future errors — future malpractice lawsuits.
The healthcare industry is struggling to move away from the individual blame game and move toward assessing how medical errors happen and what can be done to prevent them.
Michelle Mello, an expert on malpractice at the Harvard School of Public Health, wrote: “Many plaintiffs’ attorneys view themselves as safety crusaders and believe that the threat of litigation makes providers practice more safely. But the tort approach to safety regulation — which is punitive in orientation, individualistic in focus, and adversarial in process — is in serious conflict
with the non-punitive, systems-focused, cooperative approach of the “patient
safety movement.”
Incentives to encourage providers to report problems — perhaps reducing liability exposure for the provider or hospital but ensuring adequate compensation for victims — is one avenue to explore.
Simply imposing non-economic caps doesn’t do a thing to reduce medical errors, but Congress has been shuffling back and forth studies and statistics from both parties that either support or discredit damage caps as a way to reduce malpractice litigation and lower insurance premiums that drive physicians out of healthcare.
Bush touted the 1975 California law that imposed caps on non-economic damages. “Patients in that state see their claims settled a third faster than states without those limits,” he told an Illinois audience this week. “In other words, patients are treated more fairly where there’s a cap. And since 1975, insurance premiums for California doctors have become much more affordable premiums than anywhere else in the country — than in most states.”
The non-profit Foundation for Taxpayer and Consumer Rights quickly shot back malpractice premiums rose 450 percent after the 1975 cap until a 1988 voter initiative passed that began regulating insurance premiums by law.
The foundation said the administration should be looking at insurance company profits if they want the root of the premium problem — an idea posed to White House spokesman Scott McClellan during two regular media briefings this week.
McClellan repeatedly dodged the questions but said: “The lawsuit abuse is the issue we need to address to fix the medical liability system. We have too many frivolous lawsuits being filed.”
It’s estimated only about 1 in 7 people who suffer an injury related to medical negligence actually files suit — but many people who do file claims don’t have a case. That argues for establishment of an independent way to determine fair liability and set forth reasonable guidelines for awards that make the process predictable for attorneys, patients and healthcare providers.
Some countries in Europe have no-fault insurance systems. Here in the United States, the insurance industry already has an external review process for patients who have claims denied.
Karen Ignagni, president of America’s Health Insurance Plans, the lobby group for health plans, told HealthBiz, “We also need to look at administrative remedies that can be put into place to have complaints heard at a far earlier stage.”
Ignagni said the concept of the external review system could be broadened to work in a malpractice review process.
The Bush administration has a golden opportunity and some momentum to create solid legislation that reforms the malpractice system and helps the industry reduce medical errors. It just needs to get beyond damage caps.
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