- The Washington Times - Tuesday, September 15, 2009

When President Obama reached across the aisle in his health care speech to Congress last week by directing the Department of Health and Human Services to authorize state experiments to reform malpractice law, he managed to disappoint both Republicans, who saw it as an empty gesture, and trial lawyers, who felt betrayed by a Democratic ally.

The speech also was the first time HHS Secretary Kathleen Sebelius received direction on the initiative from the White House, said an agency official who did not want to be identified discussing the department’s inner workings.

The president “made the direction in the speech,” the official said, adding that it would take the department at least a month to formulate specifics about the program.

The state demonstration projects endorsed by Mr. Obama were first proposed by President George W. Bush. The idea is to give grants to states for establishing alternatives to court action for settling malpractice claims.

Still, Republicans balked that the president’s plan was a tactic to delay more sweeping reform measures. Trial lawyers bristled that a Democratic president had ceded any ground on the issue.

“It has no place in the debate,” said Anthony Tarricone, president of the American Association for Justice (AJJ), which lobbies for trial lawyers. “Limited accountability will never improve the quality of health care.”

He said malpractice law was a distraction from the real issues of improving quality of care, reducing medical errors and expanding coverage to the millions of uninsured Americans.

Republicans for years have sought to rewrite malpractice laws that they say drive up health care costs by forcing doctors and hospitals to buy expensive malpractice insurance and practice “defensive medicine,” performing unnecessary tests and procedures to avoid liability for not taking every possible diagnostic precaution.

Democrats, who have long allied themselves with trial lawyers, argue that defensive medicine is a myth and that limiting malpractice lawsuits would produce minuscule savings while jeopardizing patient safety.

A fact sheet by House Speaker Nancy Pelosi, California Democrat, cites an Institute of Medicine study that showed preventable medical errors each year kill as many as 98,000 patients in the United States.

The AJJ often cites the same figure.

“I don’t believe malpractice reform is a silver bullet, but I’ve talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs,” Mr. Obama said in his speech to Congress. “So I’m proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.”

It was an applause line for Republicans. But the proposal that followed — federally funded pilot programs devised by individual states — fell far short of wining Republican support for the president’s broader health care overhaul plans.

The type of experiments in malpractice reform, also known as tort reform, backed by Mr. Obama are already under way in a handful of states and are a far cry from the national reforms Republicans want, such as caps on damages. The latter are strongly opposed by Mr. Obama and the trial lawyers.

Likely models for state projects include an early disclosure/early payment system and an administrative resolution system. Both would aim to avoid lawsuits.

The early disclosure model would encourage doctors and hospitals to notify patients quickly of errors and promote mediation to settle issues of compensation. This system, which is used in several states, including Kentucky and Michigan, is designed to give medical professionals incentives not to conceal errors for fear of lawsuits.

An administrative resolution provides for medial experts to vet malpractice claims and reject frivolous lawsuits. The system has shown some success in Florida and other states.

A grant program for these types of projects is included in the House health care bill, though HHS already has the authority to pursue the projects.

“Don’t just say, we’ll meet you halfway on medical malpractice by trying to ‘encourage states’ to engage in alternative dispute resolution,” said Senate Minority Whip Jon Kyl. “That’s not meeting us halfway.

The Arizona Republican said he did not think the president’s speech “advanced the bipartisan ball.”

• S.A. Miller can be reached at smiller@washingtontimes.com.

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