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Republicans skeptical of malpractice reform
This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

In his health reform pitch to Congress, President Barack Obama promised to move on an issue near and dear to the hearts of many conservatives -- medical malpractice reform.

While they appreciated the mention, which was met with hearty applause, many Republicans in Washington were underwhelmed by his promise of "demonstration projects." The president has authorized the Health and Human Services Department to set up a grant program for states that would focus on ways to reduce costs stemming from patients' lawsuits against medical professionals.

But these projects would fall far short of the Republican goal to place a federal cap on damages for pain and suffering.

"Finally, he is acknowledging the problem and taking some initial steps," said Utah Sen. Orrin Hatch. "But ultimately, it seemed more like lip service than a real commitment."

The president clearly intended his comments about malpractice reform to be an olive branch for the GOP and an indication that even if few Republicans end up voting for his broad reform proposal, he at least made some attempt to include their ideas.

"Many in this chamber -- particularly on the Republican side of the aisle -- have long insisted that reforming our medical malpractice laws can help bring down the cost of health care," he said in his joint address to Congress on Wednesday. "I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs."

Officials at Health and Human Services say they will provide specifics on how much money will go to these pilot projects and/or how states will access that cash within the month, but the White House has already given some indication of what projects they would like to see funded.

One idea is pre-litigation screening, where patients would have to present their claims to a panel of experts before going to court. The idea is that these experts, including doctors, could help weed out frivolous lawsuits. The second idea favored by the White House is early disclosure programs, where doctors or hospitals would fess up to errors, apologize and try to make amends before a lawsuit is ever filed.

A number of states already have pre-litigation panels, including Utah, which created its program in 1985. Utah's panels consist of a doctor, a lawyer and a lay person. Their finding is only a recommendation and does not limit someone's ability to sue.

A legislative audit conducted in 1993 found "no objective way to determine whether the pre-litigation process has been a success."

No one has studied their effectiveness in Utah since that audit, which found the panels predicted the court outcome 67 percent of the time, though many attorneys representing patients didn't trust the panelists to be objective.

Utah doesn't have any coordinated effort to encourage medical personnel to acknowledge and apologize when they make a mistake, but full-disclosure policies have become more popular in recent years.

The Veterans Affairs Hospital in Lexington, Ky., implemented the first disclosure program in 1987 and after studies showed a big drop in legal costs and a reduction in lawsuits, the V.A. expanded it nationwide in October 2005. That includes the Salt Lake City-based V.A.

That same year, then Sens. Obama and Hillary Clinton, co-sponsored a bill that would have expanded disclosure programs broadly. The bill didn't go far, but it is an idea that has stuck with the president.

The idea for demonstration projects is not a new one for Democrats. A House committee accepted an amendment along these lines earlier this year that was offered by Rep. Bart Gordon, D-Tenn., and backed by Rep. Jim Matheson, D-Utah.

Matheson called the president's support for demonstration projects the start of a needed conversation.

"I think that is an issue that ought to be on the table," he said. Matheson ended up voting against Democratic health-reform efforts in committee. He cited lack of malpractice reform as one of his reasons.

Hatch, one of the Senate's biggest backers of malpractice reform, has unsuccessfully pushed health-reform amendments that would have added much more extensive change, including a Republican-backed federal cap on damages for pain and suffering, set at $250,000. Utah has a state cap set at $480,000.

He argues that these stronger measures will give doctors more security, resulting in less unnecessary tests ordered out of a fear of potential suits. But Democrats, including Obama, oppose caps because they believe it is an arbitrary limit that will hurt a patient or a patient's family that has already suffered because of a medical error.

Negotiators in the Senate Finance Committee are discussing the idea of special medical courts for such cases under the theory that a judge with medical expertise would be harder to sway than a jury, Sen. Kent Conrad, D-N.D., told The Associated Press. Other ideas include a push for more arbitration and some liability protection for doctors who follow best practices.

"We'll see how serious the president is about addressing this issue when he starts to dictate health care priorities to the Democratic leaders in the Senate," said Hatch, a Finance Committee member. "We all know more needs to be done in this area to lower costs to consumers."

mcanham@sltrib.com" Target="_BLANK">mcanham@sltrib.com

Malpractice reform

Health and Human Services say it will reveal specifics on funding for state pilot projects by month's end. But the White House already has signaled its support for some ideas:

Pre-litigation screening » A malpractice claim must be vetted by a panel before it could go to court.

So-called 'I'm sorry' laws » Physicians could acknowledge errors, apologize and attempt to resolve problems before a lawsuit.

Politics » GOP appreciates Obama's concession, but say it doesn't do enough.
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