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Don't Expect Obama to Lead Malpractice Reform

John Commins, for HealthLeaders Media, June 26, 2009

President Barack Obama received enthusiastic applause from a room full of doctors on June 15 when he acknowledged that they feel like they're "constantly looking over their shoulders for fear of lawsuits."

But the applause quickly died, and a smattering of boos were heard when the president warned the annual gathering of the American Medical Association in Chicago not to get "too excited yet."

"I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue," Obama said to applause. "Now, just hold on to your horses here, guys. I want to be honest with you. I'm not advocating caps on malpractice awards, which I personally believe can be unfair to people who've been wrongfully harmed."

As the air momentarily left the room, the president said a focus on patient safety, and evidence-based medicine would reduce incidences of malpractice more than award caps.

If anyone was expecting any sort of malpractice reform coming out of Washington as part of the healthcare reform proposal, the president's unstated message to the nation's largest physicians' organization was: Don't hold your breath.

Rep. Charles Boustany, R-LA, and a cardiovascular surgeon, says further proof that malpractice reform is not an issue in Congress this year is in the 852-page healthcare reform bill put forward by the House Democratic leadership.

"There is nothing in there about malpractice reform," says Boustany, the ranking Republican on the Oversight Subcommittee of House Ways and Means. "Democrats don't see it as a significant program. I had a conversation with a Democratic member of the House, who was also a lawyer, who told me he doesn't think it's a problem. That's pretty much the majority opinion on the Democratic side of the aisle."

Boustany says malpractice caps have worked in California, Texas, and his home state of Louisiana. But he says other cost-saving factors need to be considered.

"Even more importantly in looking at the whole issue of malpractice, you have a lot of potential for frivolous claims," he says. "Lawyers exchange letters, costs get run up into the thousands of dollars, or tens of thousands of dollars and then the case gets dropped because it's utterly frivolous. But that is an added cost that gets tacked onto the physicians' premiums each year. What you end up with is rising health insurance premiums as a result of that activity in addition to the occasional big judgment."

Rep. Jim Cooper, D-TN, disputes Boustany's claims that malpractice caps have worked. "Caps pretend that all human beings are the same, all pain and suffering is the same. In general, one-size-fits-all solutions are not good solutions," he says.

Instead, Cooper points to his home state of Tennessee, where physicians own their own malpractice insurance company. "That aligns incentives so the doctors self-police," he says. "They've done a good job of getting rid of bad doctors in Tennessee."

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