Political Common Ground on Malpractice Reform Remains Difficult


WASHINGTON — President Obama signaled in his State of the Union address that Democrats and Republicans might find common ground on health care reform with the issue of medical malpractice, but experts remain far apart on how the Congress should tackle the issue.

Gene Ransom, executive director for the Maryland State Medical Society, remains optimistic. He says aisle-crossing on medical malpractice would better both sides.

"Hopefully, Democrats and Republicans can work together on this issue," Ransom said. "It would mean a reduction in defensive medicine, which is something that would help people across Maryland from all demographics."

Defensive medicine refers to the practice of medical professionals ordering extra tests or procedures, that may be unnecessary, out of fear of being sued.

Republicans took over control of the House in November in part on a call to repeal the health care reform measure passed by the Democrat-dominated House and Senate last year.

In his State of the Union address, Obama made a peace offering, saying, "I'm willing to look at other ideas to bring down (health care) costs, including one Republicans suggested last year—medical malpractice reform to rein in frivolous lawsuits."

Ransom agrees with Republicans who say that "defensive medicine" drives up costs, and leads to higher malpractice insurance rates for physicians, who pass them down to patients. Ending defensive medicine would mean significant change for the medical liability system in Maryland—a state, he said, already burdened with having, "one of the lowest (Medicaid) reimbursement rates for doctors in the country."

Tort reform is something the MedChi community has "wanted for a long time," Ransom said, adding that he was happy the president considered it in his address.

Medical malpractice, or tort, reform refers to a push to create changes in the justice system to reduce the number of so-called frivolous or trivial lawsuits filed against health professionals accused of making mistakes in care.

Orthopedics doctor Peter Lavine, who served with District Mayor Vincent Gray on a health care discussion panel, said the best chance for bipartisan consensus has already passed.

"The president missed a great opportunity last year to combine bills put forth by both the Democrat and Republican leadership," said Lavine. "The bill put forth by Republicans, H.R. 3400, included many of the ideas now being brought forward, including medical malpractice reform."

House Republicans in summer 2009, introduced H.R. 3400, also called "Empowering Patients First Act," to address medical malpractice specifically. The bill capped punitive damage awards (damages designed to punish the defendant for causing injury) at $250,000.

This year, they introduced H.R. 5, the "Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2011," which would, among other changes, limit punitive damages, reduce attorney fees and decrease the statute of limitations for medical malpractice claims, according to a report from the Congressional Budget Office.

Some Democrats and trial lawyers, however, say the Republican proposal's changes are unnecessary, saying that medical malpractice is less of a health care issue and more of a civil justice one.

Barry J. Nace, former president of the Association of Trial Lawyers of America, says there is no tort crisis, as Republicans claim, and that medical malpractice laws are necessary to protect patients from reckless doctors and their mistakes.

"What is a frivolous lawsuit? The guy I voted for used that term in his speech, but I don't know what that means," Nace said. "Just because patients don't have a lot of injuries, does that mean they were not malpracticed upon?"

Nace said malpractice can mean denial of care, and cited the example of a client from La Plata, Md., who was denied a CAT scan because of her weight. Doctors refused her care, Nace said, because they feared she would break their machine.

"So, they shipped her out to another hospital. When she arrived, it took doctors another 13 hours to perform a CT because she got there in the middle of the night," he said. "It was just a total, horrendous show," said Nace. "We were told this was a frivolous lawsuit."

Nace, who has worked as a personal injury lawyer in the greater Washington, D.C., area for 40 years, also disapproves of limits or caps on punitive damages and challenged GOP leaders who favor such practices.

Republicans should look at the issue through the average American's eyes, he said.

"Here's what you should say to all these Republican senators and House members who want to cap awards: Senator (Mitch) McConnell (R-Ky.), if your wife were to lose both of her legs as a result of malpractice, do you think that would be worth only $250,000 to her?" said Nace.

And a reduction in attorney fees, he said, would make lawyers reluctant to take medical malpractice cases.

In Maryland, approximately 3,163 medical malpractice claims were made against physicians from 1990 to 2003, according to the National Practitioner Data Bank. Another 85 claims were made against nurses in Maryland in that same period.

Maryland imposes a $500,000 limit on recoverable, non-economic damages in medical malpractice cases, according to Maryland Statute 11-108b.

Non-economic damages are different from punitive damages. They are awarded for pain, suffering, emotional distress and loss of companionship, as is stated on the American Tort Reform Association's Web site.

In the District of Columbia, where damages are not capped, the malpractice issue is very contentious.

The situation, Lavine said, has lead to a mass exodus of physicians from the city to Prince George's and Montgomery counties and has crippled the District's economy.

"When doctors leave the city, they take five (related professionals') salaries with them to the suburbs. Hospitals close and so do the gift shops and parking lots," said Lavine. "It creates a ripple effect that drains tax money and results in job loss."

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