Medical Malpractice Reform Needed in Health Care Bill, Senator and Doctors Say

By Fred Lucas | October 21, 2009 | 4:13 PM EDT

Senate Minority Leader Mitch McConnell (R-Ky.) (AP Photo)

( – As Senate Democrats meet behind closed doors to produce a single health care bill, Senate Minority Leader Mitch McConnell (R-Ky.) is repeating his call for medical liability reform.
In a speech Tuesday, McConnell noted that the Senate Finance Committee bill, written by Sen. Max Baucus (D-Mont.), offers only “lip service” to medical malpractice reform. “If Democrats were serious about getting rid of junk lawsuits, I’m sure they could have found room in the 1,500-page Baucus bill … Unfortunately, they did not.”
Congressional Republicans all along have insisted that health care reform must include an end to junk lawsuits that boost health care costs for small businesses and all Americans.
Senate Majority Leader Harry Reid (D-Nev.) is now working with Democratic Sens. Chris Dodd of Connecticut and Baucus (and White House officials) to morph the two Senate bills into a final version that will come to the floor for a vote.
Both the Senate Health, Education, Labor and Pension Committee bill and the Senate Finance Committee bill would impose mandates on employers to provide insurance and for individuals to carry insurance, while preventing insurance companies from denying coverage for pre-existing conditions.
One underlying difference is that the Finance Committee bill reduces the deficit, according to preliminary scoring by the Congressional Budget Office, although the CBO says further analysis is necessary.
By contrast, the HELP Committee bill would increase the deficit. In addition, the HELP bill also creates a government-run insurance option to compete with private insurance, while the Finance Committee bill creates an insurance co-op to compete with private insurers.
Neither bill would put limits on medical malpractice lawsuits.
Reid opposes medical malpractice reform. The Las Vegas Review-Journal quoted him as saying, “The doctors should stop whining about this and just take care of their patients.”
Donald J. Palmisano, who served as president of the American Medical Association in 2003-2004, said he is puzzled by Reid’s comment.
“That’s really nice, considering that 80 percent of cases filed against doctors are closed with no payment; and those that go to trial, the doctor wins 89 percent of the time,” said Palmisano, currently spokesman for the Coalition to Protect Patients Rights, a group that opposes the Democratic health reform plan. Palmisano noted that if he had an 80 percent success rate in appendix removal cases, “they wouldn’t let me operate.”
Medical malpractice reforms in Texas helped reduce insurance premiums for doctors by more than 25 percent, McConnell said.
The New England Journal of Medicine reported that 40 percent of liability suits in the U.S. are entirely without merit, and even in cases where the plaintiff prevails, most of the compensation goes to someone other than the plaintiff.
The AMA endorsed the House bill that would establish a government-mandated option. Arguing that this would reduce insurance costs, Palmisano said Tuesday that he still has a lot of respect for the AMA, but as a “conscientious” physician, “I believe the American Medical Association made a serious mistake because it violates AMA policy, which stipulates no government involvement in the practice of medicine.”
He stressed that government health care already restricts the right of individuals to contract with their physicians.
In Medicare, he noted, it is forbidden for a patient to suggest that the physician forget about the co-pay: “‘I’ve had tough times doctor this month. Can you forget the co-pay?’  Palmisano said, imitating a Medicare patient. “Certainly I can forget the co-pay,” he continued. “Except for one thing – I’d be violating federal law. It is considered fraud for the physician to tell the patient ‘forget the co-pay.’”
Doing away with “defensive medicine,” the practice of ordering costly procedures out of an abundance of caution to avoid medical lawsuits, could help reduce the cost of care, McConnell said.
The Republican leader mentioned various groups that President Barack Obama has invited to White House events to help promote health care reform. “But one group you haven’t seen are the personal injury lawyers who drive up the cost of medicine and premiums for all of us by filing wasteful lawsuits against doctors and hospitals across the country,” McConnell said.
McConnell said Americans spend more on lawsuits than any other country.
“The routine nature of this so-called ‘defensive medicine’ is one reason health care costs have skyrocketed over the past decade, and junk lawsuits are the primary reason that doctors today spend a fortune on liability insurance even before they open their doors for business,” he said.
Once the Senate produces and passes a final health care bill, it will have to be reconciled with the bill that eventually passes the House before going to President Obama for his signature.