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."
Cooper is also an advocate for "health courts" that would hear malpractice cases outside of "normal court litigation."
While pointing out that "the direct problem of malpractice is about 2% of healthcare costs," Cooper concedes that there are significant indirect costs attached to defensive medicine. "I've seen figures as high as $100 billion. That is a lot of money. I would accept that it is a real problem that needs a real solution," he says.
"What you also can't pretend isn't a problem" are the tens of thousands of preventable deaths each year in the United States that are due to medical errors, Cooper says.
Malpractice 'Bogey man'
Taylor Lincoln, research director of the Congress Watch division of Public Citizen, calls the notion that malpractice is a healthcare cost driver a "bogey man."
"This idea that healthcare costs are somehow medical malpractice is a driver of healthcare costs is completely false. There is just plain no evidence," he says.
"If you take the most inclusive broad-based read, which would be the liability insurance payments by doctors and hospitals, including their payouts, litigation costs, paying insurance company overheads, malpractice is 0.7% of all medical costs in the country," he says. "Medical malpractice payments, correcting for the CPI, have fallen for about five years in a row and yet medical provision costs, the costs of providing care in America, has continued to gallop forward at about twice the rate of inflation."
Lincoln says the more plausible explanation for the rise in healthcare costs is the financial incentive physicians get for ordering and providing more medical procedures.
He says advocates for malpractice reform ignore Institute of Medicine estimates that as many as 98,000 people die each year because of preventable medical errors. "Nobody disputes this. Hospital and medical care are extremely unsafe. Whether it is the fault of the systems or individual physicians, it's just way too unsafe," he says.
"So, to believe this defensive medicine argument, you have to believe that in the same universe you have an incredibly unsafe medical environment where way too many errors occur, with the exception of vigilance for ordering tests, in which case these doctors through no personal motivation of enrichment happen to be incredibly conscientious and vigilant," he says.
Boustany disagrees. He says healthcare reform won't work unless the federal government addresses expensive and pervasive defensive medicine. "The issue of malpractice is real. It adds significant costs to the healthcare equation, and it has to be addressed," he says.
"You can talk to physicians and you will find unanimously across the board that no matter how much they are focused on trying to practice good medicine and doing things by the book, if there is uncertainty, they will order additional tests," he adds.