Medical malpractice reform is returning to the spotlight as lawmakers embark on deficit-reduction discussions, with a broad-based health care coalition suggesting possible middle ground while trial lawyers gear up to fight against tort reforms that would cap damages or limit trial by jury.
The American Association for Justice unveiled a “Take Justice Back” campaign Tuesday (Nov. 13) that pushes back against traditional medical malpractice reforms. Meanwhile, some health care stakeholders are floating new tort reform approaches, which one industry expert said would be a good issue to watch as legislators consider a grand bargain for deficit reduction.
For example, the National Coalition on Health Care in a new report pushes a health court model for malpractice claims in the Federal Claims Court, which hears suits against federal medical facilities including community health centers and veterans’ hospitals. NCHC — whose members include providers, insurers, consumers and others — says this would allow for federal policymakers to fully test health courts without interfering with states’ individual tort systems, as it would not affect private malpractice cases in state courts.
David Kendall from Third Way, a centrist think tank that developed the proposal, said that caps don’t get at the fundamental problems with medical malpractice torts as they currently exist, which is that few people who encounter a problem come forward and proceed with a suit and there is no direction to doctors to learn what went wrong and how to avoid the problems. The current malpractice system also is not a precedent system, Kendall said, which means the results of suits could be all over the map.
“Obviously we’re going to need to deal with malpractice cases outside the Federal Tort Claims Act sooner or later, but the FTCA is a good place to develop the health court idea since it is already a federal process and there’s no conflict with state courts,” Kendall said.
Internists in June also pushed health courts as a way to break the stalemate over medical malpractice legislation.
The NCHC also supports expanding federal support for “disclose and offer” programs and grant funding for states to develop and implement evidence-based safe harbors. America’s Health Insurance Plans President Karen Ignagni supported safe harbors in October, and AHIP has said providers who follow best practices and evidenced-based guidelines should be protected from frivolous lawsuits. Kendall, however, called safe harbors “cookbook medicine.”
But physicians and other groups are still pushing liability caps. The Health Coalition on Liability and Access, which ran ads supporting candidateswith a history of supporting medical malpractice reforms, has encouraged states to experiment with medical malpractice options, but Mike Stinson of the HCLA said they are all theoretical at the moment and have not been proven to be effective or create health care savings as he says caps have. Stinson says he would prefer for the federal government to not rush into something where it does not know what the implications may be.
On the other side of the issue is the AAJ, formerly the Association of Trial Lawyers of America, whose new online campaign opposes tort reform. The campaign will “dispel the myths, report the facts and introduce the real people who have been affected by ‘tort reform,’” according to a press release. The campaign has been in the works for some time, but the group opted to push forward following the elections as it says there is work to be done in this arena that can capitalize on the activism among voters after campaign season.
“One of the key lessons from this election is that the American people want accountability. Now that the election is over, it is time to get to work,” AAJ President Mary Alice McLarty said.
The website advertising the campaign says that corporate interests seek to restrict trial by jury, limit damages through caps and “exploit anything that keeps them unaccountable.”
It’s too early to tell what lawmakers will be focusing on as potential pieces of a grand bargain, an industry expert said, but they seem to be looking for all potential savings, making medical malpractice reform a likely target. There’s no real indication yet as to what any movement on reform might look like, though, or what chance it has of being included, the expert said.
The House of Representatives passed the HEALTH bill in March, which caps non-economic damages at $250,000, although some Tea Party conservatives oppose caps on damages as they believe caps would infringe on states’ rights and key Democrats have always opposed capping non-economic damages because they believe caps would harm consumers. The National Council of State Legislatures has also raised concerns about the impact of caps on the states’ role of regulating torts.
“Given strong opposition from the plaintiffs’ bar, the possibility of enacting such proposals is slim,” NCHC says in its plan for health and fiscal policy.
— Michelle M. Stein ([email protected])