- The Washington Times - Thursday, March 18, 2010

ANALYSIS/OPINION:

One full year into a debate over our national health care system, it is clear that Republicans and Democrats have fundamental philosophical differences over the types of reform we should pursue. Most honest observers, however, agree on one central challenge facing the system: Medicare is in dire need of repair.

According to the 2009 Medi- care Trustees Report, Medicare has an unfunded liability of $38 trillion, and Medicare’s Hospital Insurance (HI) Trust Fund will become insolvent by 2017. Next year, the HI Trust Fund’s assets will fall below projected costs at the very time the first baby boomers begin to retire. If we do not bring down costs in a meaningful way, Medicare cannot survive.

To bring Medicare back from the brink, Congress must take seriously the mathematical reality and begin looking at broad structural reform proposals, such as the “Roadmap for America’s Future” by Rep. Paul D. Ryan, Wisconsin Republican. But while the political courage is amassed for such comprehensive changes, there are less dramatic actions we can take right now to bring down significantly health care costs and help sustain Medicare for future generations. One is meaningful medical liability reform.

Many on the left are quick to dismiss the impact that medical liability reform could have, minimizing the costly effects of lawsuit abuse on Medicare and our entire health care system. President Obama himself has indicated that he’s not convinced of its significance by offering only further study of the issue and petty “demonstration projects.” As a former practicing physician for more than two decades, I can tell you no further study is needed. I have seen firsthand how our current system forces doctors to practice defensive medicine that adds nothing to patient care but higher cost.

This truth is borne out in a recent Gallup survey of American physicians. The report finds that 21 percent of all the tests and treatments ordered by doctors are done only to ward off frivolous lawsuits, equating to 26 percent of all health care dollars being spent, or a staggering $650 billion needlessly spent each year. This is the practice of defensive medicine - and every physician is obliged to participate.

To rein in these costs, several states already have moved to institute caps on noneconomic damages for malpractice suits, but this is not the only available option. To truly solve the problem, we must reduce the number of junk lawsuits being brought, not just the astronomical monetary sums they pursue.

One solution, the HealthCOURT Act (H.R. 3372), is an innovative approach to reforming the process for handling medical malpractice cases that would decrease the need for health care providers to practice defensive medicine. With such potential to change the system, it stands alone as a comprehensive alternative to capping damages.

For starters, the bill establishes an affirmative legal defense based on compliance with best-practice guidelines that are set by a qualified physician consensus-building organization - physician groups with a shared interest in improving our health care system - and physician specialty organizations - those doctors actually taking care of patients every day.

Under the proposal, physicians following these nationally recognized gold standards of care in the clinic room would be providing quality care to patients while also being provided a “safe harbor” in the courtroom. This should allow for faster resolution of claims as well as a reduction in junk lawsuits and the overall practice of defensive medicine.

The measure also would maintain flexibility and innovation so that patients and doctors may use a new procedure or approach to care. The alternative of placing this power in the hands of government, as the president supports, would be a disaster for the innovation that Americans demand in a 21st-century system.

Next, the plan would create grants for new state health courts to provide the resolution of disputes concerning injuries supposedly caused by health care providers. This new legal structure would promote greater access for patients who have been truly wronged while also allowing a panel of medical experts first to review a case and make recommendations about liability. Once the panel has made its recommendations, the parties then would choose to settle or proceed to a “tribunal” or health court.

The opinion of the expert panel would be admitted before the tribunal, and the legal standard for the tribunal would be whether a medical provider engaged in “gross negligence.” These health courts would be presided over by a select judge with expertise in health care and malpractice matters and would be granted the authority to make binding rulings on standards of care, causation, compensation and related issues.

If either party is unhappy with the tribunal’s decision, that party may appeal the decision to a state court, preserving a traditional trial by jury. Any determinations made by the panel and the tribunal would be admissible in court. And, of course, once a party appealed to a state court, any previous determinations would be void.

Finally, the HealthCOURT Act declares in law that patients and doctors should be making medical decisions rather than insurance companies or the government. The bill reaffirms that insurers are liable if they make a decision that causes harm to patients. It also develops performance-based quality measures established by the Physician Consortium for Performance Improvement and physician specialty organizations. This means that doctors in the field would be defining quality care, not Washington bureaucrats.

The HealthCOURT Act would transform the medical liability system into one that relies on the experiences and expertise of medical professionals. Doctors would become less concerned about the threat of predatory lawsuits and more concerned with providing the most responsible and efficient care for their patients. The best part is that these common-sense reforms would save taxpayers up to $132 billion every single year, putting us one step closer to preserving Medicare for the long term.

Rep. Tom Price of Georgia, an orthopedic surgeon, is chairman of the Republican Study Committee.

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