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  • The State of Medical Malpractice Reform in the Union

    Justice for John Yoo and Jay Bybee

    Forgive me if I seem skeptical of President Obama’s assertion last evening in his State of the Union address when he said that he was “willing to look at other ideas to bring down [health care] costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.”

    The president has in the past made clear his opposition to such reform, saying that he did not “believe malpractice reform is a silver bullet.” This despite the fact that abusive tort litigation against medical providers greatly increases medical malpractice-insurance costs, raising the costs of health care and driving providers out of business. Such litigation also forces almost all doctors to practice “defensive medicine” – ordering unnecessary tests and treatments to avoid potential lawsuits. This literally adds hundreds of billions of dollars to the cost of health care every year.

    In 2009 when President Obama addressed Congress on health care, he made a very dubious offer of future medical malpractice pilot projects and supposedly ordered his Secretary of Health and Human Service, Kathleen Sebelius, to move forward with “authorizing demonstration projects in individual states to test these issues.” Apparently, Sebelius gave out minimal grants for a small number of ineffectual projects in 2010, none of which seem to deal with the serious issues of abusive litigation and defensive medicine, such as one in Washington state that seeks to “enhance the culture of health care communication.” Of course, that should come as no surprise given that Secretary Sebelius was the head of the Kansas Trial Lawyers Association for eight years, which like other tort lawyer organizations, opposes all forms of effective medical malpractice reform like damage caps that might impinge on their profligate profiteering.

    The Obamacare law, which the president considers to be the hallmark achievement of his administration, did not have a single provision in its thousands of pages making any needed changes in our medical malpractice system. It does have one section that provides incentive payments to states that provide “an alternative medical liability law” that prompts “fair resolution” of disputes, although any “alternative” must allow patients to opt out and pursue litigation “at any time.” But the Obamacare law also specifically dissuades states from implementing successful, proven reforms since no such incentive will be paid to any states that limit “attorneys’ fees or impose caps on damages.”

    This is also no surprise, since tort lawyers are one of the biggest sources of campaign funding for Democrats. In a very candid moment at a town meeting, Howard Dean admitted that the reason there was nothing in Obamacare on tort reform was “because the people who wrote it did not want to take on the trial lawyers…And that’s the plain and simple truth.”

    But the president’s statements about health care illustrate a more basic problem. He expressed no concern whatsoever about the constitutionality of federal legislation that nationalizes our health care system, even though the individual mandate has been declared unconstitutional by a court ruling in Virginia and a majority of the states are opposing the law in another lawsuit in Florida. Further, President Obama’s statements about medical malpractice reform show that he has learned nothing from the debate over his health care law and the serious constitutional issues it raises.

    The president’s statement implies that the federal government has the ability to tell states what kind of damages can be paid in tort cases, which is an issue well within the sovereign control of state governments, not Congress or the Executive Branch. It is certainly true that Congress could condition some funding of federal programs like Medicaid or SCHIP on states implementing medical malpractice reform for medical providers in those federal programs. But Congress does not have the constitutional authority to tell states how their legal tort system should be run in all medical liability cases.

    Like so much of what the president said last night, his actions over the past two years have been completely different from what he is suddenly saying now. And in Washington, actions speak louder than words.

    Posted in Obamacare [slideshow_deploy]

    11 Responses to The State of Medical Malpractice Reform in the Union

    1. Kevin H, college par says:

      Not sure how you can critizice President for stating the absolute obvious – medical malpractive is not a silver bullet. It would be foolish to think medical malpractive reform is all that is needed to fix the broken health care stystem.

      It's simply absurd to state the president has made it clear he opposes it.

      "The president has in the past made clear his opposition to such reform, saying that he did not “believe malpractice reform is a silver bullet.” '

      Talk about partisan nonsense.

      It is but one of the many issues that needs to be addressed, and thankfully, it looks like the Dems and President are open to dealing with that and repealling the 1099 provision.

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    4. Doug Wojcieszak says:

      Hans,

      You write that Obama made a series of grants for a small numbrer of "ineffectual projects in 2010," and then you made light of a grant given to a Washington healthcare system to focus on communication.

      This is called the disclosure movement, and it has made great strides in reducing malpractice litigation while improving safety and satisfaction in the healthcare system. Several large hospital systems and insurers have reporterd significant reductions in malpractice claims and expenses using disclosure.

      At the heart of disclosure are communication and problem solving techniques when something goes wrong. Instead of stony silence (which leads to litigation), docs are encouraged to talk and work with patients and families post-event, including offering apologies and upfront compensation when needed. Such an approach a) limits the need for litigation in most cases and b) removes the string from lawsuits when litigation proceeds. It really works because patients and families get what they need most: accountability and honesty.

      Disclosure is not only the best way to solve the malpractice crisis, but it is the only solution that receives support from organized medicine/insurers as well as trial lawyers and patients/families. It is best compromise and why it was included in the healthare reform bill.

      To learn more, visit http://www.sorryworks.net or you can call me at 618-559-8168 — love do an interview.

      - Doug

      Doug Wojcieszak, Founder

      Sorry Works!

      PO Box 531

      Glen Carbon, IL 62034

      618-559-8168 (direct dial)

    5. Lloyd Scallan (New O says:

      Time and time again, Obama has proven he is a leftist ideologue that will say

      and do anything he must to deceive the American people. The speeches he reads from his teleprompter are nothing more than words that his advisers suggest the people of this nation want to hear. The sad fact is that their are still millions of Americans that actually believe those words.

    6. Jill, California says:

      More important than imposing tort reform is addressing the problems that make medical malpractice lawsuits necessary.

      I filed a medical malpractice lawsuit after my former doctor performed the wrong surgical procedure and left me with permanent damage in my knee. I can give him the benefit of the doubt and say that maybe he felt it was a better procedure than the one he had intended to do beforehand. But he had never discussed the options with me, so he didn't have my informed consent to do the procedure he chose. And all of the preoperative paperwork specified the other procedure. So I nailed him for both medical malpractice and medical battery. I got a little bit of money out of it, but it will never compensate for a lifetime of pain or for the things I can no longer do because of his bad decisions.

      The attorney who represented me in that case convinced me to go to paralegal school and has since hired me. Now I get to help clients who also have been permanently harmed by their doctors. The one thing I can't do is turn back the clock and undo the damage these clients have sustained. I would if I could. I'd do anything to stop the problem at its cause … treat the problem, not the symptoms.

      Tort reform is needed to stop the frivolous lawsuits. But we can't deprive people who are legitimately harmed by their doctors of the one recourse they have for compensation. Instead, we should focus on reforming the doctors before they hurt people.

    7. Christopher Shafer, says:

      No, it's not a 'silver bullet' as it won't fix all of the problems with our healthcare system, but Malpractice Reform is an important step. Only a lawyer who benifits from the way things are or a Democrat who benifits from a lawyer who benifits from the way things are would disagree.

    8. Bobbie says:

      I don't understand why people refuse to acknowledge this piece of garbage to be unconstitutional therefore the medical malpractice reform is untrustworthy.

    9. Pingback: Trial lawyers upset with proposed med-mal reform – Legal News Line | Health Insurance News

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    11. Pingback: AntiObamaBlog.com » The State of Medical Malpractice Reform in the Union

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