Republican House Leadership Puts Med Mal In Focus At Hearing

NU Online News Service, Jan. 24, 11:27 a.m. EST

WASHINGTON—An advocate for medical liability reform contended at a congressional hearing Thursday that there is “no question” that medical lawsuit abuse is “undermining both our health care system and the doctor-patient relationship.”

But a supporter of the current system argued at the same hearing that caps on non-economic damages and other measures would force injured patients to turn to other sources for help, mostly likely Medicaid, therefore increasing the deficit.

And, in submitted testimony, Lawrence E. Smarr, president and CEO of the Physician Insurers Association of America, argued that “the medical liability system is broken.”

He said that “neither doctors nor patients benefit from a system of rampant litigation. Only lawyers do, and thus they support a system that is fundamentally flawed and inefficient.”

The conflicting views were aired during an oversight hearing held by the House Judiciary Committee on “Medical Liability Reform—Cutting Costs, Spurring Investment, Creating Jobs.”

It was the opening attempt by Republicans in their campaign to propose alternatives to the current health care reform system. It followed a 273-175 vote Thursday on H.R. 9, a resolution charging House committee chairmen with the responsibility to pass legislation that would “replace ObamaCare with meaningful reform to lower costs, expand access to affordable coverage and protect the doctor-patient relationship.”

The Judiciary hearing is expected to be followed by legislation designed to limit medical malpractice claims and cut the costs of defensive medicine, defined by Republicans as diagnostic or therapeutic measures that doctors conduct more to protect themselves against possible malpractice liability than to ensure a patient's health.

Dr. Stuart Weinstein, a spokesman for the Health Coalition on Liability and Access, said at the hearing that “medical liability has devolved from a system designed to protect patients’ rights and improve the quality of health care to a system designed to reward personal injury lawyers.”

He said medical liability was an issue that was left unresolved following last year's major health care overhaul.

He testified that defensive medicine is “the antithesis of health care reform. It increases health care costs and has the potential to lessen the quality of care that we strive to provide our patients every day.”

He also cited Congressional Budget Office estimates that medical liability reform would result in costs savings to the federal budget of $54 billion over the next 10 years.

But Joanne Doroshow, executive director, Center for Justice & Democracy, said that besides increasing the deficit, the prescriptions designed to cut the cost of medical liability would also likely “unfairly increase the obstacles that sick and injured patients face in the already difficult process of seeking compensation and prevailing in court.”

She charged that there is “still an epidemic of medical malpractice in this country” and said revisions in current law “will also reduce the financial incentive of institutions, such as hospitals and HMOs, to operate safely, which will lead to more costly errors.”

She, too, cited the CBO, saying the nonpartisan agency had looked at several studies, including one study finding tort restrictions would lead to a 0.2 percent increase in the nation’s overall death rate. “If true, that would be an additional 4,853 Americans killed every year by medical malpractice,” Ms. Doroshow testified.

In his submitted testimony, Mr. Smarr said the current system for assessing medical liability “is seriously flawed.”

He explained, “Injured patients may wait more than four years on average for their claim to be resolved after an alleged injury. And then, when they are compensated, substantial sums of their money go to pay attorney fees and other litigation expenses, thus depriving [patients] of the funds that had been intended for their recovery.”

Mr. Smarr added, “Unfortunately, no data exists, but it is widely believed that 40 percent or more of awards and settlements is paid to the plaintiff attorney, who also passes along the costs of prosecuting the claim.”

At the same time, “doctors may be needlessly dragged through lengthy litigation, their reputations tarnished even when it is proven that they did nothing amiss [which is the case more than 80 percent of the time for claims resolved at verdict],” Mr. Smarr testified.

He said, “While doctors, patients and MPL insurers are seeking to fix the system, the personal injury bar, which stands to profit from it, steadfastly advocates for the status quo.”

In a statement, Matt Brady, a spokesman for the National Association of Mutual Insurance Companies, said it is important that Congress consider tort reform for medical liability as an integral part of the health care debate.

“As we heard from the witnesses in the hearing, the fear of being sued has led to the practice of more defensive medicine by the medical community, which in turn leads to higher costs for all Americans,” Mr. Brady said.

“Any effort to reform our health care system should include a plan to address the costs of defensive medicine, and eliminating the fear of frivolous lawsuits through reforming the tort system should play a major role in achieving that outcome,” Mr. Brady added. 

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