When President Obama held his health care summit at the White House, Rep. Dave Camp (R-MI) pointed out that a key part of containing medical costs was completely missing from the debate: medical malpractice legal reform. The cost of defensive medicine alone (without taking into account the direct costs of such claims) “could be as high as $239 billion” according to a study by PriceWaterhouseCoopers cited by Camp.
So what was President Obama’s response? He basically interrupted Camp and told him to “finish up.” On March 3, when Obama gave his speech in the East Room on health care reform, his only mention of this issue was about “funding state grants on medical malpractice reform.” Of course, he has said that before – in his address to Congress on health care last fall. Then he offered to fund “pilot” projects even though states like Texas and Mississippi have instituted such reform and we already know what works.
The House bill actually tries to kill effective malpractice remedies such as caps on noneconomic damages. It provides incentive payments to states that provide “an alternative medical liability law” that prompts the “fair resolution” of disputes – but no such incentive will be paid to any state that limits “attorneys’ fees or imposes caps on damages.”
Now according to a source, Rep. Cuellar (D-TX) is trying to convince his fellow legislators that this problem can be solved through an amendment to H.R. 3590. His proposed amendment states that “[t]he development, recognition, or implementation of any guideline or other standard under any provision of this Act shall not be construed to establish the standard of care or duty of care owed by health care providers to their patients in any medical malpractice action or claim.” The amendment also says that nothing in the federal law will “modify or impair State law governing legal standards or procedures used in medical malpractice cases.”
However, arguably this provision may be worse than useless from the standpoint of protecting medical providers from medical malpractice claims because it may give medical providers a false sense of security. Even if defendants will be able to argue that federal guidelines do not automatically establish a standard of care, plaintiffs’ lawyers will compare the doctor’s conduct to that federal guideline whenever the doctor’s actions deviate from it. So, the doctor will still be at risk. Second, this amendment will not preclude a plaintiff’s lawyer from arguing that a doctor should have done more than the minimum federal guideline, turning it into the equivalent of a standard. Third, only a state legislature can stop state courts from adopting the federal guideline as the state’s standard of care for medical treatment. Finally, this provision gives the states no reason or incentive to implement specific reforms that are known to work like capping damages for noneconomic damages (like “pain and suffering”).
The bottom line is that so far in this extended debate over healthcare, there is absolutely nothing substantive in the president’s proposals or the House or Senate bills that would implement any real medical malpractice reforms.