Malpractice

Over the past year or so, we began detecting some subtle changes in how Democrats were talking about malpractice. They weren't embracing the Republican tort reform agenda, weren't about to start limiting damages and saying "Sorry Charlie" to people who had suffered heartbreaking harm. But they weren't just changing the subject either. They were recognizing a problem, and considering solutions. Liability problems as well as larger obstacles to addressing serious patient safety problems.

We posted about it a few times (here and here). I started reading more about it, and I started talking (and listening) to what doctors had to say. Not just lobbyists for doctors, but doctors. Including some progressive docs in primary care who favor health reform or a single payer system. I have a piece online in American Prospect today, outlining some alternatives to traditional malpractice lawsuits that are worth trying. (Not to replace the current court system, but to test alternatives. And while we test alternative dispute resolution or other approaches, it should be voluntary.)

Health bloggers were so busy linking to David Leonhardt's excellent New York Times Magazine piece on the lessons about cost and quality drawn from Intermountain Healthcare that we nearly overlooked another piece in the magazine -- a profile of conservative activist Dick Armey -- that tells another, more alarming, story about the politics and ideology of health reform.

Armey and FreedomWorks had a hand in the angry and chaotic town hall meetings of last summer. (Freedomworks isn't the same as the Tea Party, but they overlap.) And health care, for Armey, isn't just about health or care.  It's a vehicle for the rise of the right. The economic conservative far right. The right that wants to stop government in its tracks. Or shrink it. The right that believes the American way is all about the rights of individuals, not the needs of community. And of course, the "rights" of individuals have to do with things like the flat tax, not health coverage. The right to health care, however, doesn't seem to figure in here too much.

When there's health reform smoke, there's tort reform fire. Or something like that.

Senator Orrin Hatch (R-Utah) requested that the Congressional Budget Office  update its analysis of how certain (GOP) tort reform proposals could affect annual health care spending. The updated CBO numbers are greater than 2008 estimates (page 21 of that long report) -- when CBO found that lowering premiums for medical liability insurance would reduce annual national health care expenditure by 0.2 percent. The impact tort reform would have on annual health care spending remains a controversial matter. And of course how to define and achieve malpractice reform is also in dispute.

We weren't surprised to hear President Obama back some kind of malpractice reform. As we wrote in back in July 2008, in March of this year, and in more detail this past July, Obama and key Democrats were sending just that signal to physicians' groups. Exactly what shape (or shapes) malpractice reform will take is not yet clear. But Obama emphasized on "60 Minutes" this Sunday that he is no fan of the strict limits on damages that Republicans have proposed repeatedly for many years -- and which have always been shot down in Congress even when Republicans had the majority.

PRESIDENT OBAMA:

Tort reform.  That's not something that historically has been popular in -- in my party.  But on Wednesday I specifically said that I think we can work together on a bipartisan basis to do something to reduce defensive medicine.  Where doctors are worrying about lawsuits instead of worrying about patient care.

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.

Former Senate Majority Leader Tom Daschle spoke to a full house at New America yesterday about how our rising health care costs are hurting U.S. global competitiveness. (See our issue brief on health and the global economy here.) We blogged about Daschle and his health policy book "Critical" just days after we started this blog in March but a few things have changed since then. For starters, back in March, it was still primary season. Now we have an Obama-McCain race. As Daschle, an Obama adviser, pointed out, both candidates are talking about health care, and that's good. "This problem has to be addressed," Daschle said. But he cautioned that it won't happen without sustained leadership from the next president, whichever team wins. Daschle was the second-ranking Democratic leader in the Senate during the 1993-94 health reform debates, and he knows all too well what happens when the White House and Congress lose their focus or get distracted by other problems or crises. Once the momentum slows down, it's hard to recover.

Malpractice reform has an honored place on the long list of health issues that Congress remains stalemated on, year in and year out. There are legitimate disagreements about the extent of the problem and how to address it -- and there are some political advantages in keeping malpractice reform on the political "red meat" menu. [slideshow] Encouraging more mediation and arbitration (instead of more lawsuits) has some appeal on both sides of the spectrum, but it hasn't gotten a lot of federal traction. One county in Pennsylvania has begun a pilot program. By teaming up doctors and lawyers to work together to resolve disputes amicably and putting the patient's interests first, hospitals hope to reduce patient anxiety, improve safety by addressing errors, and potentially cut costs. Here's an interesting account in the Philadelphia Inquirer.