I am on record saying that some elements of tort reform will be passed by Congress.

The most likely reform will be safe harbor immunity for following physician-developed practice guidelines. We believe this is a start.

A more robust approach would include qualified immunity for those who consciously deviate from such guidelines because in a specific clinical circumstance, it makes good clinical sense for patients. This balance would keep doctors from being forced to blindly follow a cookbook just to avoid a lawsuit.

Medical Justice has proposed such language and vetted this topic with Republican and Democratic politicians. To our pleasant surprise, there has been bipartisan support.

So, how does this spark of optimism square with Howard Dean’s recent quote at a town hall meeting in Reston, Virginia? He was explaining why tort reform was conspicuously absent from the Omnibus Democratic Bill:

“This is the answer from a doctor and a politician. Here is why tort reform is not in the bill. When you go to pass a really enormous bill like that the more stuff you put in, the more enemies you make, right? And the reason why tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth. Now, that’s the truth.”

Ok. Onward to our next prediction.

Howard Dean will be marginalized in the discussion vis a vis tort reform. President Obama and Former Senate Majority Leader Tom Daschle have explicitly stated that the safe harbor immunity discussed above should be part of comprehensive health reform. While Howard Dean may believe that subservience to the plaintiff’s bar makes passing a bill easier, other politicians understand that having physicians’ buy-in will be mandatory for long-term sustainable reforms.

Implementing tort reforms that have bipartisan support will change the chessboard. Count on it.

Jeffrey Segal is CEO of Medical Justice.

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