Congress Weighs in on Malpractice in 2017

In all the debate about the repeal and replacement of Obamacare, tort reform of medical malpractice has largely been overshadowed. Many are surprised to find this issue before Congress again because tort reform has failed five times there between 2002 and 2006. President Trump, despite never mentioning it during his campaign, has recently endorsed stripping away the rights of patients severely injured by medical malpractice, or capping compensation to catastrophically-injured children. In addition, costs in healthcare from medical liability make up just 2 to 2.5% of total healthcare spending.

Given that many states consider such laws unconstitutional, medical malpractice proposals like this might seem an odd choice for Trump to champion, as a skilled medical malpractice lawyer can explain. Voters clearly did not send politicians to Washington to rig the courts against everyday Americans or take away legal rights guaranteed by state and local governments. But then again, voters probably never desired someone like Tom Price as Secretary of the Department of Health and Human Services.

As a member of Georgia’s legislature, Price was a huge proponent of “tort reform” ideas that his own state Supreme Court found unconstitutional. While in Congress, his own ACA replacement plan contained medical malpractice ideas that have now ended up in Trump’s budget. One idea goes like this: the federal government selects “one size fits all” clinical practice guidelines (written by medical societies) for the treatment of every medical condition. Doctors receive blanket legal immunity if they follow these Federal guidelines by condition. Most alarming about the proposed federal guidelines by diagnosis is when complex patients don’t fit into these boxes. Even if physicians believe the guideline is wrong for the patient and may cause serious harm, they are to follow it to lower their malpractice risk. If the patient then seeks recourse, they must plead their case before a biased medical industry tribunal. Families wanting to have their case heard in court would face significant legal hurdles.

Over a decade ago, medical societies led by the American Medical Association were a powerful, well-funded lobbying force in their push for Federal limits on the rights of medical malpractice victims, similar to the Trump/Price budget ideas. For several years, federal “tort reform” was the American Medical Association’s “top legislative priority.” Between 2002 and 2006, the Senate voted on at least five bills to cap victims’ compensation, all of which failed.

I mention this only because, by way of contrast, today the AMA barely mentions “medical liability” in its list of priorities for Congress. This is just one indication of how low federal “tort reform” has sunk as a priority for organized medicine, generally. It is striking that not a single health care provider was available and willing to argue the case for H.R. 1215 – the legislative embodiment of the Trump/Price’s budget ideas – when the conservative Congressional Civil Justice Caucus Academy put together a recent panel on the issue.

Yet it’s more than just disinterest. Last week, in response to the Trump budget, an article appeared in Modern Healthcare entitled, “Providers want Trump to stay out of tort reform.”

Over a three-decade period,30 there has never been such a unified message from a wide variety of medical advocacy groups. In fact, only one entity came forward to either Modern Healthcare or the Civil Justice Academy to argue strongly for these measures, and it was not a health care provider. It was PIAA, the trade group representing medical malpractice insurance companies. This is not a minor point. A long time ago, the liability insurance industry decided that, if possible, it was best to hide behind others to accomplish things, well aware that the public generally detests insurance companies.

The dilemma for H.R. 1215 proponents now is that the insurance industry seems to be the only major lobby group willing to stick its neck out for this bill. PIAA has even elected to take public credit for helping to write it. This bill has so little support that it barely made it out of the Republican-led House Judiciary Committee. Along with every Democrat, Ted Poe (R-TX) voted against it. Louie Gohmert (R-TX) was absent for the vote after saying he’d vote against it. In fact, they did the same last year.  This measure is expected to have very little support in Congress.


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