- The Washington Times - Tuesday, September 15, 2009

An exceedingly brief discussion of “malpractice reform” was the only noteworthy bone President Obama threw to Republicans in his health care speech Wednesday night. It wasn’t a serious offer of reform.

Reformers in both parties want to curb abusive lawsuits that drive medical costs through the roof. Yet Mr. Obama could not even bring himself to say that any suits are abusive, but merely that doctors are for some reason practicing “defensive medicine [that] may be contributing to unnecessary costs.” To help pacify them, the best he could offer was to “direct” Secretary of Health and Human Services Kathleen Sibelius to “authorize demonstration projects in individual states to test these issues.”

This is a mere placebo. First, Mr. Obama identified no funding source for these “demonstration projects.” Second, they would not be part of any specific legislation and certainly not part of any reform bill moving through Congress, so they would exist at the mercy of bureaucratic whim. Third, they ignore the most powerful methods of reining in lawsuit abuses. Finally, the president put exactly the wrong person in charge of the effort. Mrs. Sibelius spent eight years as director of the Kansas Trial Lawyers Association. Asking her to rein in lawsuit abuse is like asking Captain Hook to battle piracy.

Spurious lawsuits in search of jackpot justice are a huge problem. The U.S. Chamber of Commerce and others cite estimates that real lawsuit reforms could save more than $200 billion over 10 years.

A 2006 study by the Harvard School of Public Health found that 40 percent of medical malpractice lawsuits involve either no actual injuries or no medical error — yet of those meritless cases, more than 27 percent resulted in compensation. Meanwhile, the researchers concluded, “The overhead costs of malpractice litigation are exorbitant.”

Mr. Obama opposes the best and simplest reform, which would put a cap (perhaps $750,000) on “non-economic damages” such as awards for “pain and suffering.” Twenty-five states already impose state-level caps. Since Texas did so five years ago, Republican Gov. Rick Perry cites statistics showing that doctors’ insurance rates have fallen by about 27 percent, while the number of doctors applying for licenses there has risen by 57 percent.

Unfortunately, sensible pain-and-suffering limits seem politically off limits as long as the president opposes them. Encouragingly, though, some congressmen of both parties seem willing to put other lawsuit reforms where they belong, in the health care bill itself, rather than waiting for Mrs. Sibelius to approve restrictive pilot projects. Ideas include: 1) the use of special “health courts” where experts, not juries, weigh medical claims; 2) mandatory arbitration for medical malpractice claims; 3) a “safe harbor” system whereby a doctor could be shielded from litigation if he can show he followed pre-established “best practices” of care; 4) so-called “I’m sorry” systems to encourage doctors and hospitals to admit error early and offer compensation in return for added protections if the offers are rejected.

Other good ideas abound. Some of them already have been demonstrated at the state-court level. Waiting for the grudging blessing of Washington bureaucrats may do more to constrain them than encourage them. But as part of permanent federal law rather than a vague presidential directive, they could help improve affordable health care delivery without subjecting the nation’s entire health care system to major and dangerous surgery.