The possibility that malpractice changes could be part of health care legislation sends doctors and trial lawyers scrambling

After President Barack Obama’s offer to compromise on the issue of healthcare reform, congressional health negotiators are considering alternatives to medical malpractice lawsuits.

According to an article recently release by the Associated Press, Senators on the Finance Committee are considering a few different proposals to change how medical malpractice lawsuits are handled in the United States.

The first possibility is to establish a special courts in which a judge with medical expertise would hear malpractice case, reports Sen. Kent Conrad, D-ND. The idea behind this alternative is the medical judge would not be as easily swayed by emotion as lay juries.

Another possibility includes the option of arbitration and some liability protection for doctors following “best practice” clinical standards in treatment of patients.

As the AP reports, economists are unsure whether malpractice insurance premiums paid by doctors, or the practice of defensive medicine to avoid a lawsuit, are major factors in rising healthcare costs. However, the issue is remains open politically, as many conservatives in both parties say doctors routinely order unnecessary tests on patients because they are afraid of being sued.

According to Obama, malpractice changes are not a “silver bullet,” but he says he’s found doctors are afraid of litigation. He is appointing the Health and Human Services Department to provide funding for pilot programs to test some alternatives to litigation.

"I hope this signals a commitment to meaningful malpractice reform," said Sen. Mike Enzi, R-Wyo., one of three Republicans in the Senate still negotiating with Democratic counterparts seeking an elusive bipartisan compromise.

With these proposals being considered, doctors’ groups now say they see a possibility for other ways to reduce malpractice lawsuits.

"I think there's been significant movement," said Dr. James Rohack, president of the American Medical Association. "The physician community has said it's a problem. The Republicans have said it's a problem. And now you have a Democratic president who says it's time to deal with this."

Meanwhile, trial lawyers say no further action is needed, and this issue should not be part of the healthcare debate.

"It shouldn't be part of the health reform debate in Congress because the president is already doing something today," said Linda Lipsen, the top lobbyist for the American Association for Justice, which represents lawyers. "I think it should close the door because the president has taken control over the issue."

Administration officials said Obama's order will encourage states to experiment with programs that reduce litigation and promote patient safety. Preventable medical errors are estimated to cause 44,000 to 98,000 deaths a year, the AP reports.

HHS officials have indicated two programs in particular—both promoted by Rep. Bart Gordon, D-Tenn., a longtime supporter of malpractice curbs:

1. "Early disclosure" or "Sorry Works," which encourages doctors and hospitals to own up to their mistakes, apologize to patients and their families, and offer restitution as well as a pledge of corrective action to prevent other patients from being harmed by the same mistake.

2. A program requiring would-be malpractice plaintiffs to go before an expert before they proceed to court. The expert — it can also be a panel — acts like a grand jury to weed out frivolous cases. Gordon says that since his state of Tennessee adopted such a requirement last year, the number of malpractice cases filed has dropped by 69 percent. And malpractice insurance premiums are expected to decline by 2.5 percent this year.

According to AP, Gordon and Enzi say they are both interested in broadening the experiment to include health courts that would focus mainly on malpractice cases, while trial workers are opposed to this option "We don't think that doctors and hospitals need special courts," said Lipsen. "It's a slippery slope. First you have a court for doctors, and then what? A court for plumbers?"

For now, there is really no reason to limit the amount of experimentation done to find a sensible solution for the medical malpractice debate.

"I certainly think the door is open now,” Gordon says, “to discussion of any kind of legitimate alternative.”

Source: The Associated Press