Could Lawsuit Curbs Pave Way For Health Care Deal?

In the Republicans’ most recent weekly radio address, Wyoming Sen. Mike Enzi offered several of what he called “common sense reforms” aimed at curbing health care costs: more competitive insurance plans, better information for health care shoppers, and that old GOP chestnut – cutting down on frivolous lawsuits.

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“We need to reform our flawed medical liability system and eliminate junk lawsuits against doctors and hospitals,” Enzi said. “Unnecessary lawsuits cause extra costs and drive up health care costs.”

Democrats, who get significant backing from trial lawyers, have generally resisted efforts to curb lawsuits. But former Democratic Sen. Bill Bradley suggests a grand bipartisan trade-off: Give the GOP the relief from lawsuits they want in exchange for the universal health insurance that Democrats want, he wrote in a New York Times op-ed column.

Dr. Nancy Nielsen, immediate past president of the American Medical Association, loves the idea.

“I read the op-ed piece and all I could think was from his lips to God’s ears. I mean, it would be a wonderful thing if it were that simple,” she said.

Fear Of Liability

AMA members stood and applauded back in June when President Obama promised to let them be “healers,” not “bean counters.” But the doctors’ loudest applause came when the president said he would consider steps to shield them from malpractice lawsuits.

Obama didn’t go as far as doctors would like, though.

“Just hold on to your horses here, guys,” he said, drawing a mixture of laughter and boos. “I’m not advocating caps on malpractice awards.”

In general, doctors really like caps on malpractice awards – like the one that Texas imposed six years ago. It limits pain and suffering awards to $250,000. The cap has made it cheaper for doctors in Texas to buy malpractice insurance, and it’s encouraged more doctors to set up shop in the state. But a review by the The Dallas Morning News found no evidence the malpractice savings had been passed on to consumers. And parts of Texas still have some of the nation’s highest medical bills. The Congressional Budget Office concluded that fear of liability is only one reason doctors sometimes perform unnecessary procedures. Their own income is also a factor.

Limiting lawsuits by itself won’t change a system that gives doctors a financial incentive to do more and more. But liability reform could still be useful, if it helps win doctors’ trust.

“Health policy experts almost all agree that the most important thing for overall health reform is changing the way medicine is practiced and health care is delivered in this country,” said Bill Sage, a doctor and law professor who studies medical liability at the University of Texas. “And if one of the things perpetuating the current system is fear of malpractice liability, I’m certainly willing to consider dramatic changes to the malpractice system.”

A Bipartisan Compromise?

So far there are no dramatic changes in the offing – although one version of the House bill does include incentives for states to explore alternative liability systems. Obama has said he’s willing to consider “a range of ideas,” short of capping malpractice awards. But White House spokesman Robert Gibbs sounded doubtful this week that medical liability reform could be the basis of any grand bipartisan compromise.

“The president’s willing to consider any number of approaches,” Gibbs said. “But there have to be people on the other side of the table to respond to those gestures. I’m concerned people in those chairs seem to be leaving more rapidly than the American people want them to.”

For his part, Enzi isn’t talking about a grand compromise, either. In his radio address, he called for scrapping the current health care bills, despite months of negotiation in which he’s been a key player.