HEALTH CARE: In Malpractice Debate, Perception Counts

Put President Obama and a U.S. physician in a room (or in a virtual room as the case may be) and chances are, the talk will turn to malpractice costs.

You can make—and many have—the argument that rhetoric and perception aside, malpractice costs don't add much to the overall health bill, a percent or two. (Although at a time when we're looking for all the savings we can get in the health system, one or two percent can add up in a $2.2 trillion system).

But rhetoric and perception do matter. Politically, addressing malpractice could get an obstacle to reform out of the way—-both from doctors who are truly convinced malpractice is really The Big Problem With the System, as well as from anti-reform forces who would rather inflate the malpractice issue than look at all the things wrong with the status quo.

In terms of perception—if we address doctors' concerns (and some well-intentioned, even progressive pro-reform, doctors sincerely believe that the threat of malpractice lawsuits is distorting the practice and cost of medicine no matter what the CBO says)—maybe it will be easier, both in raw politics and in changing attitudes, to get doctors on board for all the changes we need to make in health care in this country. That includes rethinking the delivery and payment system, which will require adjustments from doctors, and a frank look at the rate of medical errors, how to reduce them, and finding a fair way of helping the victims. Right now, we aren't systematically addressing the root causes of errors, nor are we necessarily compensating those that have been worst hurt. According to Brandeis research on malpractice, less than one in seven patients who are actually injured by negligence file a claim; and only one in six claims that are filed actually involve negligence. It can take five or 10 years to settle a case, and then more than half the payouts go to administrative and legal costs, not the injured patient. It is not a model system.

Obama isn't about to embrace caps on damages. Challenged at the Virginia health care town hall about caps by Texas Republican Rep. Michael Burgess, a physician, and in his recent AMA speech, Obama explained that he opposes them. They are arbitrary, they aren't a good answer for people who suffer egregious harm. On their own, they also don't solve the problem, which is more complex than flaws in the tort system. When Burgess talked about the success of caps in Texas, Obama swiftly parried: Tell that to McAllen, Texas. On top of all that, caps aren't going to happen; Congress, even when controlled by Republicans, has rejected them time and again.

But what Obama signaled to the AMA was an acknowledgment that this matters to them, and that he was willing to reach out and consider new solutions, not just recycle old partisan stalemates. Some were surprised. We weren't. When Tom Daschle spoke about health policy here at New America last year, we noted his openness to some kind of malpractice solution, possibly health courts. Presidential adviser Zeke Emanuel, a physician, addressed the AMA a few months ago in D.C. and told them he understood their concerns and that malpractice was part of the policy mix. Researching this post, we came across a New England Journal of Medicine essay dating back to 2006 jointly authored by no other than Obama and Hillary Clinton. They were working together in the Senate at the time on legislation that would use disclosure, apology, and settlement as an alternative to bitter litigation.

Health CEOs for Health Reform, a group we've been working with, wants a federal task force to move us toward a "safe harbor" for clinicians following best practices. (See page 12 of their white paper)  A recent New England Journal of Medicine Perspective essay lists all of these options—safe harbors, health courts, disclosure programs—as worthy of consideration.

Obama said he wants to help doctors reduce liability and fear of lawsuits when "they haven't done anything wrong, where they perform effectively." He also wants someone who gets a surgical sponge left in their belly to have redress.

Overall, he told his town meeting, he believes that reforming our health care system "is the best way for you to keep the care you've got." Reforming the malpractice system may also be the best way for doctors to give us the care we need.