- The Washington Times - Wednesday, July 1, 2009

President Obama can’t fix health care without taking on trial lawyers. David Axelrod, the president’s chief strategist, warned about “punishing health care costs” again on ABC’s “This Week” on Sunday. “That’s something that we have to deal with,” he said. In a June 15 speech to the American Medical Association, Mr. Obama complained about how excessive defensive medicine drives up costs. This is a regular theme in White House talking points.

We agree there’s a problem, but at heart and by training, Mr. Obama is a lawyer. That’s why he won’t address one major cause of the high costs of medical care: There are too many lawsuits, and they are too lucrative.

Mr. Obama is against capping malpractice awards to reflect actual damage done to patients. He is against doing away with strict liability rules, which means a vaccine maker or a doctor can be held liable for a bad outcome even if the doctor or manufacturer did not create the problem.

A recent study by two economists, Daniel P. Kessler and Mark B. McClellan, estimates the costs from defensive medicine at $100 billion to $178 billion in 2005. Defensive medicine is made up of actions taken specifically to protect against lawsuits. Doctors do everything from ordering expensive tests to having a nurse or a second doctor with them to witness conversations with patients. The costs add up. In major cities, obstetrician-gynecologists face average liability insurance rates of $250,000 per year.

Mr. Obama could have learned a lesson from his own state. In 2005, Illinois was so litigious that OB-GYNs could save $75,000 to $100,000 per year on liability insurance by moving to the neighboring states of Wisconsin, Indiana or Missouri. Legislators in the Land of Lincoln took note and passed the Medical Malpractice Reform Act, which placed a cap of $500,000 on noneconomic damages in medical malpractice cases while not limiting compensation for the lost value of life or other physical harm. By the end of 2006, OB-GYN liability premiums in Illinois had fallen by 30 percent.

If Mr. Obama is serious about making health care less expensive, he will have to fix the liability system. That means taking on his own kind - the lawyers. That’s not a very likely remedy.

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