| In a bid to win support for health reform from skeptical doctors back in 2009, President Barack Obama pledged action on an item near the top of their wish list — malpractice reform.
And he delivered an initial step: $25 million to test alternatives to the medical liability system. That won praise from the American Medical Association, among others. But since then, tort reform on the federal level has been put on ice, a victim of both tight money and bitter politics.
Malpractice provisions in the Patient Protection and Affordable Care Act were limited in the first place — $50 million for expanded state demonstration projects. And Congress didn’t fund it. Nor did the administration get the $250 million it requested for fiscal year 2012 for the Department of Justice to explore alternative approaches.
Meanwhile, House Republicans are pushing for the kind of reform they’ve backed for many years — a $250,000 federal cap on noneconomic damages and shortening the statute of limitations. But the bill, called the HEALTH Act, has little chance of clearing the Senate, which is controlled by Democrats, who have historically resisted tort reform.
The two sides have been arguing for years, with the Democrats accusing Republicans of siding with insurers instead of injured patients, and the Republicans saying Democrats are beholden to trial lawyers. Meanwhile numerous studies have documented ongoing problems with patient safety, as well as significant flaws in the way the legal system currently handles malpractice cases, sometimes dubbed “jackpot justice.”
Yet unless the supercommittee acts, it looks like tort reform will be left for now to the states — many of which have already taken some kind of action. The Congressional Budget Office has estimated that tort reform similar to the Republican caps proposal would save $54 billion over 10 years.
“It doesn’t look like anything big is going to happen soon,” said Urban Institute scholar Randall Bovbjerg. The $250 million DoJ request to finance alternatives including so-called health courts, safe harbor and “disclose and apologize” models, “could have been a meaningful effort,” he added.
The ACA provisions, on the other hand, were worth little to begin with. The proposed $50 million “showed they cared about responding to reform and defensive medicine and such, but the restrictions in the law made it impossible for it to amount to anything,” Bovbjerg said.
“It was only ever intended as a political sop,” said Philip Howard, founder and chairman of Common Good, which advocates for expert health courts to settle medical liability claims. Backers of health courts say they would be fairer and more consistent than the current way of handling malpractice cases.
What’s left are the relatively limited projects funded in June 2010 with the initial $25 million through the Agency for Healthcare Research and Quality — 13 planning grants of about $300,000 each and seven $3 million, three-year demonstration projects.
And even that AHRQ program is on hold. The Department of Health and Human Services solicited applications for a second round of grants but “since Congress hasn’t funded it yet, the applications have not been reviewed,” an HHS official said.
Congressional Republicans oppose the demonstration projects in hopes of positioning their tort reform law as a core piece — and a well-defined piece, after so much congressional debate — of their “repeal and replace” strategy for the ACA, staffers say.
“The president’s demonstration projects are an attempt to profess interest in malpractice reforms without actually taking action,” Rep. Lamar Smith (R-Texas) wrote in an email to POLITICO. “We don’t need to ‘demonstrate’ that medical malpractice reforms are effective; that has already been proven in the states where these reforms have been enacted.”
The caps, already in place in many states including Texas and California, may provide more predictability for doctors and malpractice insurers. But they do nothing to address the underlying system, which is increasingly understood to serve neither patients nor doctors well or fairly. But the political debate over how to address the problem has ossified into a rote partisan exercise, Bovbjerg said.
“The lawyers say the system works great,” he said. “The other side says it’s the worst thing since the fall of man from Eden, but if we have a little less of it, it will be fine.”
In his book, “Healthcare, Guaranteed,” Ezekiel Emanuel, a bioethicist now at the University of Pennsylvania and a former White House adviser on health policy, laid out the case against the existing malpractice system.
“Numerous studies have shown that the majority of patients who suffer a medical error are not compensated, while a select few win outsize awards. And on average, patients must wait nearly five years to resolve claims and receive payments from a malpractice case — six if the case is related to the delivery of a baby.”
Among the alternatives being developed in several states or communities include the “disclose and offer” or “disclose and apologize” model. First introduced by the Veterans Administration and adopted by other health systems, including the University of Michigan, it encourages health providers to acknowledge and apologize for medical errors and offer patients compensation. If the patient rejects the offer and opts to sue, any previous admission would be inadmissible in court. Proponents say this model encourages providers to identify mistakes openly — and work on ways to prevent errors or harm from happening to another patient.
Health courts, based on previous specialized courts, would provide administrative compensation as ordered by trained judges and medical experts, rather than the usual trial by a lay jury. These have not been tested yet.
The safe harbors model would protect providers from liability if they follow established best practice guidelines, although in many cases, those guidelines have not yet been specified or widely agreed on.
“There are a lot of ideas that need to be tested as a first step,” said Michelle Mello, a professor of public health at Harvard and a malpractice reform advocate who has applied for funding through AHRQ.
The initial round of AHRQ grants provided funding to develop and test some of these models, particularly the disclose and offer variety. The demonstration grants went to university researchers, health systems, a public health department and a court system.
And the idea was that some of the 13 planning grants would subsequently get project-level funding.
“That was the hope,” said Joy Wilson, health policy director of the National Conference of State Legislatures. “But it’s not easy to fund anything in this environment. It didn’t happen.”
Advocates of comprehensive malpractice reform are frustrated by the mismatch between rhetoric and action. And the AMA still wants a nationwide fix.
“It will come back around — and sooner rather than later — because fundamentally, you can’t manage health care if you can’t manage health care justice,” Howard said. “But no politician wants to do it.” |
