The New Health Dialogue

We weren't surprised to hear President Obama back some kind of malpractice reform. As we wrote in back in July 2008, in March of this year, and in more detail this past July, Obama and key Democrats were sending just that signal to physicians' groups. Exactly what shape (or shapes) malpractice reform will take is not yet clear. But Obama emphasized on "60 Minutes" this Sunday that he is no fan of the strict limits on damages that Republicans have proposed repeatedly for many years -- and which have always been shot down in Congress even when Republicans had the majority.

PRESIDENT OBAMA:

Tort reform. That's not something that historically has been popular in -- in my party. But on Wednesday I specifically said that I think we can work together on a bipartisan basis to do something to reduce defensive medicine. Where doctors are worrying about lawsuits instead of worrying about patient care.

STEVE KROFT:

If it came down to getting this plan passed would you be willing to do more in the area of tort reform and malpractice insurance? Would you be willing to -- to agree to caps, for example, on -- on malpractice judgments?

PRESIDENT OBAMA:

You -- you know what I would be willing to do is to consider any ideas out there that would actually work in terms of reducing costs, improving the quality of patient care. So far the evidence I've seen is that caps will not do that. But there are a range of ideas that are out there, offered by doctors' organizations like the AMA, that I think we can explore.

Our colleague Julie Barnes is a lawyer, and we hope she finds time to delve into this issue. In the meantime, some quick thoughts on why this may be good politics, a useful tool for easing doctors' acceptance of changes in how we deliver care, and in helping us address some barriers to patient safety and quality improvement. You can also read that July post, where we looked at some of this. (In that post, we also note that the costs of malpractice and defensive medicine, though hotly debated, are not a big piece of the overall health spending pie. However, we do need all the savings we can muster if we are going to cover the uninsured, and in some parts of the country and for some specialties, including emergency medicine, obstetrics, and surgery, getting malpractice insurance is a real problem).

Politics:

This is good politics, as it lets Obama basically say that he is listening to the other side and addressing their priorities. The Republicans have been saying for years that if you cap malpractice damages, you solve a lot of the health costs problem. Now the Dems can come back and say, "We are tackling malpractice." Given the current political climate, we expect a lot of Republicans may counter -- but you aren't solving it our way. (Indeed, some are already saying that. ) Actually the Bush administration, while pushing for caps, also looked at other approaches. As the Washington Post's Amy Goldstein recently reported, the Bush administration had proposed experiments on "disclose and apologize" models. Doctors disclose the error and apologize, and both parties go to mediation when warranted. Obama and Hillary Clinton had outlined a similar approach in 2006.

Doctors:

The AMA, long an advocate of caps and a foe of reform, appears to have softened its stance on what constitutes malpractice reform. Various documents and position papers and statements still call for relief from malpractice costs -- but they aren't drawing lines in the sand about hard caps on damages. For instance, one pro-reform AMA policy paper says it wants reform that "eases the crushing weight of medical liability and insurance company bureaucracy." It goes on to say, "It's time for results, not rhetoric. It's time to shift our focus from arguing about differences to working together to resolve them."

As we've said approximately 40 zillion times, to restrain health care costs, we need different incentives and different payment and delivery models. That means doctors are going to have to accept changes. Experts don't agree on how much "defensive medicine" contributes to our surfeit of tests and procedures and overtreatment, but addressing the malpractice issue will help peel back that argument ("I have to order unnecessary tests to protect myself legally") and help us tease out how much is defensive medicine, how much is practice patterns (doctors in a given community doing things a certain way because doctors in that community have always done things that way) and how much is because it means doctors make more money (some of which then goes to pay their malpractice insurance...)

Quality and Equity:

An incentive for Democrats to want to tackle malpractice is that the system as it now stands is an obstacle to creating a "culture of safety" in medicine. The best way to stop mistakes is to acknowledge them, analyze them, learn from them -- and see what in the system (not just errors by individuals) allows mistakes to be made over and over again. Hard to do that if you are hiding errors to avoid a lawsuit.

The current system also isn't terribly equitable or efficient.

According to research on malpractice, less than one in seven patients who are actually injured by negligence file a claim; and only one in six claims that are filed actually involve negligence. It can take five or 10 years to settle a case, and then more than half the payouts go to administrative and legal costs, not the injured patient. It is not a model system. In addition, people who have been injured -- but not severely enough to produce big, juicy damages -- may have trouble getting a lawyer to take their case on contingency. In short, some kind of voluntary alternative dispute resolution (health courts -- although there are a lot of ways to design health courts -- safe harbor defenses, disclose and apologize programs) might actually help people who are injured more than the current system. And injured parties, after all, are who the malpractice system is supposed to protect or compensate in the first place.