Opinion Column

Malpractice Reform: A Test Case for Bipartisanship At The Health Summit

This column is a collaboration between KHN and

The New Republic

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Ever since President Barack Obama announced he’d be having a bipartisan meeting to talk about health care reform, Republicans have been denouncing it as a charade. He’s not really interested in their ideas, they say. And he doesn’t really want their support.

But is the problem that Obama won’t listen to the Republicans–or that the Republicans won’t listen to Obama? One way to answer that question is to watch what happens at Thursday’s health ‘summit’ meeting if discussion turns to medical malpractice reform.

The issue is familiar to anybody who follows health care policy or, for that matter, anybody who has ever spoken to a doctor at length. Republicans have long said that frivolous malpractice lawsuits make medical care more expensive, by forcing doctors to spend money on lawyers, malpractice insurance and in some cases large jury awards. In addition, they say, physicians who fear malpractice end up practicing “defensive medicine,” ordering up unnecessary tests and procedures that cost a lot of money. The solution, according to the Republicans, is to cap jury awards, as several states have already done. California, for example, limits pain and suffering awards in malpractice to just $250,000 per case.

More often than not, Democrats have opposed malpractice reform. They’ve pointed to studies questioning just how big of an impact malpractice litigation has on overall health costs. They have also cited evidence–fairly incontrovertible–that most victims of medical errors never get any compensation at all. As such, Democrats have argued, capping damages won’t do a lot to reduce health care costs. What’s worse, it might discourage people with legitimate claims of malpractice from bringing legal action.

The parties’ allegiance to special interests has reinforced the political stalemate. Business groups, which traditionally support Republicans, have promoted malpractice reform because it’s part of a broader campaign to rein in liability lawsuits. (Such lawsuits frequently target corporations and result in large jury awards.) Trial lawyers, who traditionally support Democrats, have fought malpractice reform for the same reason. (Trial lawyers are the ones arguing and making a living from such lawsuits.)

But there are ways to break the impasse. While malpractice may not be a major factor in rising health care costs, the system is clearly broken. It forces doctors to operate under a cloud of suspicion, without necessarily punishing those physicians who are truly negligent. It encourages the use of tests and treatments that are frivolous, if not downright harmful. And it leaves the vast majority of people who need compensation for medical errors with no easy way to get it.

The key is finding ways to fix the malpractice system so that it helps both physicians and the patients, rather than one at the expense of the other. And there are several promising possibilities for achieving that. One is to have doctors report medical errors to hospital administrators, who would then notify patients and begin negotiations. A version of this “sorry works” model is in place at the University of Michigan Health System, where it has reduced lawsuits, cut litigation costs and sped the resolution of cases.

Another idea is to create a no-fault system, similar to the way workers’ compensation works, or to channel most malpractice cases through special “health courts” that would come before jury trials. (The Scandinavian countries and New Zealand have such systems in place.) One other proposal–perhaps the most intriguing–is to tie malpractice to quality incentives, by offering some sort of legal protection to physicians who demonstrate they have abided by accepted clinical guidelines. Not only might such a scheme cut down on frivolous lawsuits. It might also improve the quality of care–which would, in theory, reduce the incidence of actual malpractice.

The good news is that Obama doesn’t need convincing on this front. Back in 2005, while he was still just a senator, he co-sponsored (with Hillary Clinton) a bill that would have implemented a “sorry works” model nationally. It didn’t become law, but Obama kept talking up malpractice reform. Last year, he instructed the Department of Health and Human Services to sponsor a series of demonstration projects around the country.

Michelle Mello, a Harvard professor and leading expert in the field, says experimenting with the different models is precisely the right approach to take–because the data on the different reforms is still very sketchy. But, she adds, the experiments HHS has launched probably won’t go far enough, because they are too limited. To really see which approach works, it’s essential to get more data–and, whenever possible, to get data that covers an entire area (or areas) rather than one hospital or hospital network. Otherwise, it’s difficult to tell whether a program has worked simply because of idiosyncratic factors like a particularly dedicated staff.

This is where the Republicans could push the discussion forward. Both the House and Senate health reform bills encourage more experimentation. But they don’t set aside enough money. If Republicans wanted to do something to change malpractice, they could call for more funding of these programs–and, perhaps, more aggressive guidance about how to handle the results.

Of course, that would mean achieving malpractice reform, a cause they’ve long championed, in a different manner than the Republicans have traditionally embraced. But that’s the definition of compromise: Finding common ground with an adversary in order to achieve a goal you both share. Obama has shown he’s willing to do that. Will the Republicans do the same?

Jonathan Cohn is a Senior Editor at The New Republic