Bob Gatty

Washington—Virtually lost in the debate over health care reform and whether it will contain a public option is an effort by advocates of medical malpractice reform to advance their cause and obtain some form of relief to the steadily increasing cost of premiums and the negative impact of defensive medicine.

The American College of Surgeons and the Alliance of Specialty Medicine have been among the physician organizations that have consistently urged lawmakers to include medical liability reform provisions throughout the process in both the House of Representatives and the Senate. That effort, however, has attracted scant attention as headlines have focused on the battle to provide some form of a federally operated option and how it would operate.

Throughout the process of drafting reform bills, amendments were offered in both chambers to provide malpractice relief, and President Obama ordered the Department of Health and Human Services in mid-September to provide demonstration grants to states, localities, and health systems for the development, implementation, and evaluation of alternatives to the existing system.

"We should explore medical liability as one way to improve the quality of care and patient-safety practices and to reduce defensive medicine," Obama said in a memorandum to Health and Human Services Secretary Kathleen Sebelius, adding that liability reform must be part of the broader health insurance reform initiative.

"We must put patient safety first and work to reduce preventable injuries," the memo read. "We must foster better communication between doctors and their patients. We must ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits. And we must work to reduce liability premiums."

In communications with lawmakers, both the College of Surgeons and the Alliance urged that provisions affording various measures of relief for physicians be part of the ultimate health care reform package. Those communications were signed by AUA, which has long called for malpractice cost relief.

"We urge the [Senate Finance] committee to address this critical issue as an important tool for helping to stem the tide of rising health care costs by including commonsense, proven, comprehensive medical liability reform provisions," the College of Surgeons said in a Sept. 22 letter to Sen. Max Baucus (D-MT), chairman of the panel.

Those provisions included:

• reasonable limits on non-economic damages, such as those limitations included in laws in California and Texas
• alternatives to civil litigation, such as health courts and early disclosure and compensation offers
• protections for physicians who follow established evidence-based practice guidelines
• protections for physicians volunteering their services in a disaster or in local or national emergencies.

Incentive provision included

Meanwhile, a little-noticed provision contained in the House Committee on Energy and Commerce's health reform package would make states eligible for a federal incentive payment if they produce an alternative medical liability law that meets Sebelius' approval.

To obtain approval, each state's tort reform program would have to:

• make the medical liability system more reliable through prompt, fair dispute resolution
• encourage disclosure of health care errors
• maintain access to affordable liability insurance.

State programs could also provide mechanisms through which potential malpractice cases would first receive a "certificate of merit" on whether the damage involved was sufficient and wrongful enough to proceed. States could get extra credit in the consideration process if they included a system through which health providers who recognize errors resulting in harm to patients make early offers of restitution.

The amendment's stated purpose is to help patients receive compensation for avoidable harm caused by medical procedures, hospitals, or physicians and to shorten the judicial process, while keeping spurious litigation from proceeding. It also seeks to "ensure quality healthcare is readily available by providing an alternative framework to reduce the costs of defensive medicine and allow victims of malpractice to be fairly compensated."

Reform legislation unfolds slowly

As the process of drafting reform legislation unfolded, the Alliance expressed disappointment that legislation considered by the Senate Finance Committee did not include "real options... to address the medical liability climate that negatively impacts patient access to care and adds billions of dollars in additional spending to health care through defensive medicine practices."

As this issue of Urology Times went to press, the health care reform debate was still going strong, although there was speculation that consensus on a reform bill would be not reached until late November at the earliest. Whether medical liability provisions would be included and what they might contain was unclear.

However, the suggestions were floating around Capitol Hill that some Democrats might seek to use malpractice reform as a bargaining chip to attract Republican support for some health care reform provisions. Perhaps the House amendment to provide states with incentives will be a compromise that can find its way into law, and generate some progress on this front, at long last.

Bob Gatty, a former congressional aide, covers news from Washington for Urology Times.