Believe it or not, some element of federal tort reform is not only possible, but likely.
Sounds counterintuitive? We all know that Congress has a strong majority with Democrats. We know the President is also a Democrat. We know the plaintiff’s bar strongly supports the Democratic Party. We know that Democrats have traditionally shied away from specific reforms, such as caps on pain on suffering. So, this would seem the worst time to even bring up the topic of professional liability. Right? Wrong.
Over the past several weeks, I directly asked several politicians whether they would back a different approach – safe harbors from litigation if a physician follows any number of guidelines. Such guidelines would be developed by physicians. A frivolous malpractice suit could be stopped dead in its tracks.
Physicians would not be obligated to follow guidelines. Indeed, they might consciously deviate from a guideline if, in a particular case, it made more sense to do something else. This would give doctors latitude to do the right thing for patients – and not be constrained to choosing between safe harbor immunity from litigation and their patient’s best interest.
I asked former Senate Majority Leader Tom Daschle and former Speaker of the House Newt Gingrich whether they could rally behind that proposal. Answer: Strong yes. I asked Senator Kay Hagan, a democrat, whether she would support such a proposal. Senator Hagan found the proposal intriguing and believed it should be seriously studied. Prior to answering that question, she distanced herself from traditional reforms, such as caps on pain and suffering.
In fact, a number of Democrats and Republicans have stated this proposal makes sense. This proposal was memorialized in the HealthCare Overuse Reform Today Act HR 3372. Representative Tom Price of Georgia submitted that Act on July 29th. Representative Price is also an orthopaedic surgeon who understands the price physicians and patients pay for a capricious medico-legal system. Physicians are constantly forced to look over their shoulder and are frequently dragged into a courtroom even when exemplary care is rendered.
Patients pay more for care through defensive medicine. It is estimated that up to $200B is spent on defensive tests, referrals, and procedures. Admittedly, some defensive tests provide some value to the patient. But, the vast majority of defensive tests provide no value, except to keep the doctor out of a court. And, some defensive tests paradoxically put patients in harm’s way. Anytime a needle pierces the skin, there is a chance something bad will happen.
The broad Health Reform House Bill which passed before recess (HR3200) contains no language on tort reform. And, the bills floating through the Senate supposedly ignore the issue. Politicians on both sides of the aisle are learning that defensive medicine is not a myth. If common sense reforms can shave billions from health care cost, now is the time to get it done. So, I am on the record that some type of tort reform will be included in any final health care Bill.
Jeffrey Segal is CEO of Medical Justice.
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