Representative Charlie Dent, Republican of Pennsylvania, also has introduced ACOG-supported medical liability legislation. The Health Care Safety Net Enhancement Act (HR 36) would provide federal liability protection for physicians providing care under the Emergency Medical Treatment and Active Labor Act (EMTALA). HR 36 is commonly referred to as Good Samaritan legislation, intended to protect doctors who rush to the aid of a sick individual. The likelihood of any of these bills getting enacted into law is slim. Even some conservative Republicans oppose federal liability reform as an intrusion into states’ rights.
Some Democrats have said good things
In his proposed budget for fiscal year 2012, President Barack Obama asked Congress for funding to address medical liability issues.
He proposed “to restrain health-care costs” through “a more aggressive effort to reform our medical malpractice system to reduce defensive medicine, promote patient safety, and improve patient outcomes.” He encouraged Republicans to work constructively with him on medical malpractice as part of an overall effort to restrain health-care costs.2
The President asked Congress for “$250 million in grants to states to reform the way they resolve medical malpractice disputes,” including health courts, safe harbors, early disclosure and offer, and other legal reforms such as joint and several liability and collateral source rules.2
Congress never funded the President’s request.
President Obama repeated his request in his fiscal year 2013 budget proposal. Congress didn’t fund it then, either.
Earlier, in March 2009, in remarks to the Business Roundtable, President Obama noted that “the cost issue is the thing that we actually think is the big driver in this whole debate...things like comparative effectiveness, health IT, prevention, figuring out how our reimbursement structures are designed under Medicare and Medicaid. Medical liability issues—I think all those things have to be on the table.”3
In an interview the same month, Senator Ron Wyden, Democrat of Oregon, said, “I think [medical liability reform is] an essential piece for there to be enduring reform, reform that will stick and will get a significant bipar-tisan vote in the United States Senate.”4
Senator Wyden’s Healthy Americans Act (S 391) included incentives to get states to enact malpractice reforms as a key to overhauling the health-care system.
Also in March 2009, Representative Rob Andrews, Democrat of New Jersey, Chairman of the House Education and Labor, Health Subcommittee, pointed to the need for medical liability reform.
“It’s hard for me to imagine a [health-care reform] result that gets to the president’s desk that doesn’t deal with the medical mal-practice issue in some way.”4
And Senator Max Baucus, Democrat of Montana, Chairman of the Senate Finance Committee, proposed providing states grant money to develop alternative litigation models, such as encouraging disclosure and compensation in the case of error, and establishing health courts whose judges have health-care expertise.
As early as May 2006, President Obama (then a Senator from Illinois) and Senator Hillary Rodham Clinton, Democrat of New York, urged a focus on patient safety.
“Instead of focusing on the few areas of intense disagreement,” they wrote in the New England Journal of Medicine, “such as the possibility of mandating caps on the financial damages awarded to patients, we believe that the discussion should center on a more fundamental issue: the need to improve patient safety....”
“To improve both patient safety and the medical liability climate, the tort system must achieve four goals: reduce the rates of preventable patient injuries, promote open communication between physicians and patients, ensure patients access to fair compensation for legitimate medical injuries, and reduce liability insurance premiums for health-care providers. Addressing just one of these issues is not sufficient.”5
And then there are the trial lawyers
Readers of OBG Management know all too well that the role of trial lawyers in medical liability reform has been to block meaningful reforms from passing and to repeal reforms currently in place. The Association of Trial Lawyers of America, now known as the American Association for Justice, tries to portray itself as defending vulnerable patients against a few bad apples. Its Web site (www.justice.org) points to recent National Practitioner Data Bank (NPDB) figures indicating that “just 6% of doctors are responsible for 58% of all negligence incidents. The civil justice system seeks to weed out those few doctors whose actions have such devastating impact on patients.”
The Web site includes these bullet points:
- 6% of doctors have been responsible for 58% of all malpractice payments since 1991
- 2% of doctors having three or more mal-practice payments were responsible for 33% of all payments
- 1% of doctors having four or more malprac-tice payments were responsible for 20% of all payments
- 82% of doctors have never had a medical malpractice payment.