The Coming Fight over Malpractice Reform

Elyas Bakhtiari, for HealthLeaders Media, March 19, 2009

There's a chance that the Obama administration's efforts to revamp the healthcare system will finally bring physicians the malpractice tort reform they have been hoping and fighting for all these years. There's also a chance, if this week's news is any indication, that the battle over malpractice litigation could turn sour and derail the entire healthcare reform process.

How it will play out depends on how much physicians, lawyers, and the administration are willing to compromise.

Trial lawyers are preparing for a fight, starting with a 29-page research document they will send to Capitol Hill in an attempt to convince lawmakers that lawsuits have very little to do with healthcare costs. James Rohack, MD, president-elect of the AMA, has responded by publicly suggesting that a bill that doesn't include medical liability reform will be unsuccessful at controlling costs.

That's a sentiment I've heard from physicians before.

Two weeks ago, I was sitting in the audience at Donald Berwick's keynote address at the American Medical Group Association's annual conference in Las Vegas. The IHI co-founder had just finished a 30,000-foot overview of the problems of the U.S. healthcare system, particularly in comparison to other developed countries that get better results for less money. To both improve quality and reduce costs, everyone involved in the system—from hospitals to physicians to patients—will have to make sacrifices, he explained.

"What about malpractice reform?" the first questioner asked when Berwick opened up the discussion to attendees. He was a physician, and murmurs of approval rippled through the crowd.

Berwick's answer didn't please the questioner and many of his colleagues. The data just doesn't back up the claim that malpractice lawsuits are one of the top drivers of healthcare costs, he replied. Even when the costs of defensive medicine are considered—it's hard to get an accurate estimate, but it may cost $1.4 billion in Massachusetts alone—there are much bigger fish to fry when it comes to improving the healthcare system.

Most physicians don't want to hear that.

I'm not suggesting the trial lawyers are in the right, here. But physicians bear most of the burden of this problem, and because of that, it is a much higher priority for doctors than it is for the people looking at the healthcare system from that 30,000-foot perspective.

Even in our recent HealthLeaders Industry Survey, there was a disconnect between physicians and other healthcare leaders. More than one-third of physician leaders told us that malpractice litigation was the top driver of healthcare costs, but only 13% of respondents to our finance survey, for example, agreed with them.

It's not that tort reform isn't important—it is. And it's not that physicians shouldn't fight for reform—they should. But let's be honest about the severity of the problem and the reasons for pursuing reform. While malpractice reform is an important issue, is it really worth sacrificing the rest of the healthcare reform process if it doesn't go through?

A lot has changed since the last failed attempt at federal tort reform under the Bush administration. Progress has been made in several states that have capped malpractice awards or instituted some other type of reform. Doctors have learned that saying sorry sometimes works, and innovative thinkers have developed alternative ideas to simply capping awards, such as "health courts" to decide trials more fairly or no-fault compensation for deserving patients. Most importantly, more attention is being paid to preventing unnecessary medical errors, so fewer patients have a reason to consider a lawsuit in the first place.

The Obama administration seems willing to address medical liability reform, although the details are still unclear. Sen. Max Baucus (D-MT) has also expressed interest in tackling the issue, and he supports giving money to states for alternative litigation models.

Physicians have convinced the president that medical liability matters, and as long as they don't prioritize it over all other healthcare reform matters, they can win this fight.

Elyas Bakhtiari is a managing editor with HealthLeaders Media. He can be reached at
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