On Tort Reform, Obama Pitches State-Level Experiments but Offers Few Details

President Obama addressed a joint session of Congress on Wednesday, as Vice President Biden and House Speaker Nancy Pelosi watched. In the speech, he spoke about medical malpractice reform but was vague about his plans.
President Obama addressed a joint session of Congress on Wednesday, as Vice President Biden and House Speaker Nancy Pelosi watched. In the speech, he spoke about medical malpractice reform but was vague about his plans. (By Rich Lipski -- The Washington Post)
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By Amy Goldstein
Washington Post Staff Writer
Friday, September 11, 2009

When President Obama broached medical malpractice laws in his speech to a joint session of Congress on Wednesday night, it was one of the few times that Republican lawmakers stood to applaud. But the ideas the president embraced stopped considerably short of the federal limits on awards in malpractice lawsuits that the GOP and the nation's physicians have sought for years.

Obama said he wants the Department of Health and Human Services to encourage states to experiment with ways to reduce malpractice litigation. But he was sketchy about the details of the "demonstration projects" he has in mind.

White House officials said Thursday that the state-level experiments could include a method, already being used in roughly half the states, in which patients who want to sue must first get a certificate from a panel of medical experts that their case appears to have some merit. Other experiments, the White House said, could involve an idea, proposed by Obama in unsuccessful legislation with then-Sen. Hillary Rodham Clinton (D-N.Y.) in 2005 during his first year in the Senate, that is being tried in a few hospitals: a program in which doctors disclose mistakes early, apologize and try to negotiate a payment to the patient.

The White House said the government would give states grants to test such methods. But officials from the White House and HHS said they did not yet know important details, including how much money would be available, how many states could get federal help, how many kinds of experiments would be allowed and when they could begin. Obama said in his speech that the Bush administration had considered similar pilot programs but not started any. An HHS official said Thursday, however, that the agency had undertaken a pilot program under George W. Bush testing the effect of the "early apology" from doctors, but it had involved patients treated at federally funded health clinics and did not involve grants to states.

Even with the fine print still vague, Obama made clear that he is looking for a path that would change the remedies for medical mistakes -- a priority for Republicans who have worked for decades to limit the liability of corporations and doctors -- without alienating Democrats who are wary of restricting patients' rights. It remains uncertain whether the president's malpractice ideas will attract GOP supporters to his broad health-care goals or alienate some of his liberal allies.

The two examples the White House gave of state experiments are among a constellation of ideas that have been advocated by the Institute of Medicine, some members of Congress and a growing number of states to reduce the number of malpractice cases that reach the courts. These ideas differ fundamentally from the main way that Republicans want to revise the malpractice system: creating federal caps on the amount of money that juries and judges can award patients who win lawsuits.

In his speech, Obama did not appear to go further in his thinking about medical liability changes than he had during last year's presidential campaign or in a speech about three months ago to the American Medical Association. He alluded to a long and sharply partisan dispute over whether the medical malpractice system makes health care significantly more expensive. "I don't believe malpractice reform is a silver bullet" to curb medical spending, the president said, "but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs."

Many Republicans and the American Medical Association have contended that lawsuits against doctors, or the risk of litigation, are twisting medicine. They say that doctors waste money by ordering unnecessary medical tests, mainly to help shield themselves in case of lawsuits. And they cite examples in which the price of malpractice insurance has deterred some doctors from providing certain care -- delivering babies, for instance.

The price of such insurance remains high but has tapered off lately, according to national surveys.

The Congressional Budget Office and the Government Accountability Office have examined whether medical malpractice issues add to health-care spending and concluded in recent years that the link is tenuous. Proponents of malpractice caps cite a few studies that have suggested that states with such limits tend to have lower medical costs among certain elderly patients, but most analyses have found that it does not make much difference. The Congressional Budget Office reported in December that it had not found "consistent evidence that changes in the medical malpractice environment would have a measurable impact on health care spending."

Of the major bills before Congress to restructure the health-care system, only one addresses medical malpractice. That bill, passed by the House Energy and Commerce Committee, includes a provision sponsored by Rep. Bart Gordon (D-Tenn.) that would give states unspecified federal payments as incentives if they could find ways to improve the medical liability system and reduce such lawsuits -- without setting caps on awards.

The provision is a model for what Obama has in mind, the White House said.

Senate Finance Committee Chairman Max Baucus (D-Mont.) also has been a proponent of alternative ways to reduce medical liability costs. His committee is still working on a broad health-care bill, but he has introduced measures in the past that would have created state demonstration projects.

Research editor Alice Crites contributed to this report.

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