President Obama might be thrilled that 7.1 million people signed up for ObamaCare. But doctors have good reason to hold their applause.
Back in June 2009, Obama told a gathering of the American Medical Association that he was “looking at a range of ideas” to curtail costly medical malpractice lawsuits and “scale back the excessive defensive medicine.”
A few months later, he told Congress that “I’ve talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs” and that he would borrow a page from President Bush and fund demonstration projects for various reforms at the state level.
In a written note on a 2009 staff memo, Obama made it clear why he was talking up malpractice reform with doctors: “If this helps the AMA stay on board (with the Affordable Care Act), we should explore it.”
In the end, Obama got the AMA’s ObamaCare endorsement. But so far he hasn’t delivered any malpractice reforms.
Waste Of Time, Money
There is widespread agreement that the current medical malpractice system is a costly waste, allowing too many frivolous lawsuits and outsized awards while encouraging overspending on health care.
Between 2007 and 2011, doctors spent an average of $47,000 to defend against each malpractice suit — of which two-thirds were dropped, dismissed or withdrawn.
Of the small fraction of suits that made it to a jury, the patients lost 88% of them, according to industry data.
Doctors also waste vast sums of time on malpractice claims that don’t result in payments to patients, according to a report from the liberal Center for American Progress. And it noted that up to 90% of doctors say they practice “defensive medicine” — ordering extra tests and procedures — out of fear of being sued.
Christopher Conover , a research scholar at Duke University, calculated in 2004 that such defensive medicine needlessly added at least $69 billion to the nation’s overall health tab.
Obama’s own bipartisan debt commission concluded that the current malpractice system adds more than $2 billion a year in costs to government health programs.
But while in office, Obama has never seriously pushed any national medical malpractice reforms, and nothing of substance has happened on his watch.
Shortly after his 2009 speech to Congress, for example, the Health and Human Services Department announced $23 million in three-year “demonstration projects” to test “nontraditional” malpractice reform ideas in various states.
Critics pointed out that the studies wouldn’t produce results until long after ObamaCare was enacted. In fact, a comprehensive review isn’t expected until sometime next year.
Even then, it’s not clear what good they’ll do.
‘Proving The Obvious’
In a 2012 letter to Health and Human Services Secretary Kathleen Sebelius, Sens. Orrin Hatch, Charles Grassley and Rep. Lamar Smith complained that all the projects were “aimed at proving the obvious” — that fewer medical mistakes should lead to fewer lawsuits. None of the studies, they said, looked at ways to cut frivolous suits or excessive damage awards.
And while ObamaCare was supposed to fund $50 million in research grants, the money was never appropriated. Obama didn’t even bother to request the funds in his annual budgets, according to the American College of Physicians.
Obama did, however, keep making promises. In his 2011 State of the Union speech, he said he planned to “look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform,” citing the debt commission he organized as the reason for raising the issue.
Research Vs. Reform
The debt commission, however, proposed “an aggressive set of reforms to the tort system.” Obama instead only asked for more research grant money, which never went anywhere anyway.
Last December, Obama again said he was open to any “good ideas” that would expand access and “cut costs.”
A few days later, 34 House Republicans signed a letter to Obama outlining nine such ideas — including medical malpractice reform — and offering to talk about any one of them with the president.
They’ve yet to hear back from the White House.
The reason for Obama’s reluctance to push malpractice reform is easy to understand. Democrats fiercely oppose any meaningful changes.
When President Bush tried to get comprehensive medical malpractice legislation through Congress in 2005, Senate Democrats filibustered the bill.
And if one follows the money, it’s easy to see, in part, why Democrats take this position. Trial lawyers oppose such reforms and give lots of campaign cash to Democrats.
Since 2006, the trial lawyers’ lobby, the American Association for Justice, has given 96% of its donations — a total of $14.2 million — to Democrats, according to OpenSecrets.org. It spent another $37 million lobbying Congress over those years.
The organization’s state affiliates are just as partisan. In fact, 22 of them gave 100% of their money to Democrats.