Obama to Speed Up Tort Reform Tests, but Doctors Want More

By Ceci Connolly
Washington Post Staff Writer
Friday, September 18, 2009

One day after physicians suffered a pair of setbacks in a health-care bill unveiled by Sen. Max Baucus (D-Mont.), President Obama moved Thursday to ease the pain by accelerating a $25 million program aimed at softening the pinch of medical malpractice lawsuits.

For months Obama has wooed the nation's doctors, ranked among the most popular professionals in the country, and it appeared the courtship was paying off. The influential American Medical Association promptly endorsed House legislation that includes Obama's proposal to increase Medicare physician payments by $230 billion over the next decade.

But tensions flared again this week when doctors discovered that the Baucus bill does nothing substantively to address malpractice costs and offers them only modest gains on the high-priority issue of Medicare reimbursement.

"The feeling of most doctors is that what's being proposed is not adequate," said Peter Levine, president of the Medical Society of the District of Columbia. He called Obama's $25 million in grants "smoke and mirrors" and said Baucus refused to resolve a problem in the Medicare payment formula because it would have raised the price tag on his bill.

Physicians and some Democratic aides said Baucus, chairman of the Senate Finance Committee, sidestepped the malpractice issue at the behest of Senate Majority Leader Harry M. Reid (D-Nev.), a lawyer who received $1 million in campaign contributions in the first half of 2009 from lawyers and law firms, according to the Center for Responsive Politics.

Reid spokesman Jim Manley said that in a conversation, the Democratic leader "simply reminded Senator Baucus that the finance committee doesn't have jurisdiction over medical malpractice issues." There is "no relationship" between the donations Reid receives and his work on health-care reform, Manley said, adding that Reid has expressed interest in the idea of state review boards in malpractice cases.

Natural Enemies

Trial lawyers and doctors have long been at odds -- over the rights of injured patients, the impact of malpractice insurance and even their political preferences. Historically, lawyers have favored Democratic politicians, while doctors have leaned toward Republicans. During the 2008 election cycle, the American Association for Justice, formerly the American Trial Lawyers Association, gave more than $1 million to federal candidates, with just 3 percent going to Republicans, campaign finance data show.

The two sides disagree vehemently over how patients should be compensated for medical errors and how doctor behavior is affected by the threat of litigation. Physicians report routinely performing additional tests and procedures to protect themselves from lawsuits. The cost of "defensive medicine," which is subjective and hard to measure, has been estimated in the hundreds of billions of dollars.

Ronald Sroka, the immediate past president of the Maryland State Medical Society, said that "one of the things that make us err on the side of doing more tests is the fear of being sued."

Several government studies have found a minor connection between medical liability and rising health care costs. About 1 percent of the nation's $2.5 trillion health tab is directly attributable to the malpractice system, said William Sage, a physician and professor of law at the University of Texas at Austin.

Some physicians said that in states where legislatures have enacted laws limiting damages, liability insurance premiums have been brought under control.

But Linda Lipsen, a spokeswoman for the lawyers group, said there is no solid evidence documenting either lower insurance premiums for the physicians or lower costs to the patients.

"The way to stop medical malpractice is to provide enhanced patient safety in hospitals," said Lipsen, noting that an estimated 98,000 patients die unnecessarily in hospitals each year because of medical mistakes.

The Testing Stage

Following Thursday's announcement, the administration will soon begin providing grants of up to $3 million to states and health systems to test new approaches to medical liability. Federal officials will conduct a "review of what works," searching for innovative ways to improve physician practices with the goal of reducing costly and dangerous medical mistakes.

Obama, who has sided with trial lawyers in opposition to the caps, first mentioned the idea of demonstration projects in his address to a joint session of Congress last week.

"I don't believe malpractice reform is a silver bullet," he said, "but I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs."

It has not been lost on the White House that the AMA has opposed several previous health-care reform efforts, including the creation of the Medicare program and President Bill Clinton's failed overhaul.

Shortly after the 1992 election, as Clinton prepared to tackle health care, the association launched a $4.5 million advertising campaign warning that "national health insurance would lead to federal control of health care."

Sage said Obama's instinct to keep doctors at the bargaining table makes sense in the context of his broad effort to dramatically revamp how medicine is practiced in this country.

"If changing the malpractice environment can make them eager participants in health-care reform, we can do a whole lot of good in the country," he said. "That's the big payoff."

For two days, AMA President J. James Rohack has declined interview requests on the Baucus bill, instead issuing a statement that the organization will "stay engaged."

But other prominent AMA members complained bitterly about both the Baucus approach and the administration grants.

"It's all incredibly disingenuous," said the District medical society's Levine. "The president got up and gave a speech to the nation and said we need action now. But when it comes to medical liability reform and tort reform, it needs to be studied. The whole concept is so hypocritical."

Staff writer Dan Eggen and research editor Lucy Shackelford contributed to this report.

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