Date: 3/17/2009
By ERICA WERNER
Associated Press Writer
WASHINGTON (AP) — The Obama administration and key congressional Democrats are taking a hard look at the nation’s medical malpractice system as part of a broader health care overhaul.
“It’s an essential piece for there to be enduring reform, reform that will stick and will get a significant bipartisan vote in the United States Senate,” said Sen. Ron Wyden, D-Ore., who has a bipartisan health bill that includes incentives to get states to enact malpractice reforms.
Reviving the issue could provoke a fierce fight from trial lawyers, who, along with doctors, have the most at stake.
Already the trial lawyers’ lobby is preparing to distribute a brief on Capitol Hill casting medical malpractice as a small cost in the overall health system. The brief cites an Institute of Medicine finding that as many as 98,000 deaths in the U.S. each year result from medical error.
Trial lawyers and their Democratic Senate allies helped kill attempts under the Bush administration to cap punitive and pain and suffering payouts in malpractice lawsuits. The Congressional Budget Office says such caps could have saved the federal government $4.3 billion from 2010-2019.
Capping judgments likely remains a nonstarter.
John McDonough, a top health adviser to Sen. Edward Kennedy, D-Mass., told a conference of urologists this week that doctors must improve quality of care.
“The solution in terms of medical malpractice is not putting arbitrary caps on pain and suffering that discriminate against lower-income folks,” McDonough said.
The urologists responded with a chorus of “boos.”
But many top Democrats and administration officials say something must be done to curb medical malpractice costs to help pay for revamping the nation’s $2.4 trillion health system.
Obama himself told business leaders last week that ideas to save money like “medical liability issues — I think all those things have to be on the table.”
Senate Finance Committee Chairman Max Baucus, D-Mont., cites costs including fast-rising medical malpractice insurance premiums and so-called “defensive medicine” whereby doctors prescribe treatments that may be unnecessary to guard against getting sued if they fail to do so.
There’s agreement from some in the House including Rep. Rob Andrews, D-N.J., who chairs an Education and Labor health subcommittee.
“It’s hard for me to imagine a result that gets to the president’s desk that doesn’t deal with the medical malpractice issue in some way,” Andrews said in an interview Tuesday.
Proposed solutions include alternative dispute resolution, some similar to legislation that Obama co-sponsored with Hillary Rodham Clinton when both were in the Senate in 2005. Their bill would have created a program to allow patients to learn of medical errors and establish negotiated compensation with the offer of an apology.
Baucus has proposed giving states grants to develop alternate litigation, such as “health courts” whose judges have health care expertise.
Both lawyers and doctors say they’re open to alternative dispute ideas.
But “changing the legal system will not make anyone healthier or save one life,” said Linda Lipsen, senior vice president of public affairs at the American Association for Justice.
Meanwhile doctors are calling malpractice reform a top issue in the health reform debate.
“We need meaningful tort reform,” Nancy H. Nielsen, president of the American Medical Association, told Obama health adviser Ezekiel Emanuel at a recent conference.
“Stay tuned,” Emanuel told her.
Copyright 2009 The Associated Press.
Supporters ask court to uphold malpractice caps
Date: 11/13/2008
By JOHN O’CONNOR
AP Political Writer
SPRINGFIELD, Ill. (AP) _ A 2005 law limiting the amount of money juries may award in medical malpractice cases unfairly targets those most seriously injured who deserve the most compensation, lawyers told the Illinois Supreme Court Thursday.
Proponents of the law asked the court not to limit what they called lawmakers’ attempt to stem a health care crisis.
The law restricts awards on non-economic damages such as pain and suffering to $500,000 against doctors and $1 million against hospitals. It was aimed at lowering medial insurance rates blamed for driving physicians, particularly specialists, out of the state.
A trial court ruled last year that the law violates the Constitution’s separation of powers clause by allowing the General Assembly to restrict deliberations by judges and juries. The Supreme Court will study the matter and issue an opinion later.
Supporters argued Thursday that courts should allow lawmakers to impose reasonable remedies to problems.
“This court should not adopt an absolute limit on legislative authority. People have got to go to the Legislature,” said former U.S. Solicitor General Theodore Olson, who is defending a doctor accused of malpractice in the brain damage suffered at birth by 3-year-old Abigaile LeBron. The case is one of three out of Cook County testing the three-year-old law.
“The Legislature is equipped — this court is not equipped — to hold hearings, take testimony, and set the policy for the state,” Olson said.
The law not only limits damages, it gives state regulators more power to review and change malpractice insurance rates and tougher oversight of doctors to punish mistakes.
“Everyone has been asked to give something, including those who have suffered injury,” said Michael Scodro, solicitor general for the Illinois attorney general.
But the sacrifice is uneven, said Michael Gottesman, a Georgetown University law professor representing Abigaile LeBron and her mother. Past court decisions, he said, have ruled that laws cannot differentiate between levels of injury, which Illinois’ does.
The LeBron family’s non-economic damages, for example, might far exceed the caps, Gottesman said. In the case of a wealthy person whose injury causes millions of dollars in lost income, he would recover all of it because the law puts no restrictions on jury awards of economic damages.
“Even though the attorney general says health care consumers ought to contribute to the solution, the only people being asked to contribute to this solution are the most seriously injured people — almost by definition the people least capable of making this contribution,” Gottesman said.
Under questioning by justices, Gary Feinerman, who represents defendant Gottlieb Memorial Hospital in the LeBron case, said the court must reject Gottesman’s argument that the law must be nullified just because caps affect severely injured patients.
Rather, the court must focus on why lawmakers acted.
“The General Assembly had a very good reason. There was a health care crisis and the General Assembly chose a multifaceted solution to that problem,” Feinerman said.
___
The case is LeBron v. Gottlieb Memorial Hospital.
___
On the Net
Illinois State Medical Society: http://www.realitymedicine.com/
Copyright 2008 The Associated Press.
By JOHN O’CONNOR
AP Political Writer
SPRINGFIELD, Ill. (AP) _ A 2005 law limiting the amount of money juries may award in medical malpractice cases unfairly targets those most seriously injured who deserve the most compensation, lawyers told the Illinois Supreme Court Thursday.
Proponents of the law asked the court not to limit what they called lawmakers’ attempt to stem a health care crisis.
The law restricts awards on non-economic damages such as pain and suffering to $500,000 against doctors and $1 million against hospitals. It was aimed at lowering medial insurance rates blamed for driving physicians, particularly specialists, out of the state.
A trial court ruled last year that the law violates the Constitution’s separation of powers clause by allowing the General Assembly to restrict deliberations by judges and juries. The Supreme Court will study the matter and issue an opinion later.
Supporters argued Thursday that courts should allow lawmakers to impose reasonable remedies to problems.
“This court should not adopt an absolute limit on legislative authority. People have got to go to the Legislature,” said former U.S. Solicitor General Theodore Olson, who is defending a doctor accused of malpractice in the brain damage suffered at birth by 3-year-old Abigaile LeBron. The case is one of three out of Cook County testing the three-year-old law.
“The Legislature is equipped — this court is not equipped — to hold hearings, take testimony, and set the policy for the state,” Olson said.
The law not only limits damages, it gives state regulators more power to review and change malpractice insurance rates and tougher oversight of doctors to punish mistakes.
“Everyone has been asked to give something, including those who have suffered injury,” said Michael Scodro, solicitor general for the Illinois attorney general.
But the sacrifice is uneven, said Michael Gottesman, a Georgetown University law professor representing Abigaile LeBron and her mother. Past court decisions, he said, have ruled that laws cannot differentiate between levels of injury, which Illinois’ does.
The LeBron family’s non-economic damages, for example, might far exceed the caps, Gottesman said. In the case of a wealthy person whose injury causes millions of dollars in lost income, he would recover all of it because the law puts no restrictions on jury awards of economic damages.
“Even though the attorney general says health care consumers ought to contribute to the solution, the only people being asked to contribute to this solution are the most seriously injured people — almost by definition the people least capable of making this contribution,” Gottesman said.
Under questioning by justices, Gary Feinerman, who represents defendant Gottlieb Memorial Hospital in the LeBron case, said the court must reject Gottesman’s argument that the law must be nullified just because caps affect severely injured patients.
Rather, the court must focus on why lawmakers acted.
“The General Assembly had a very good reason. There was a health care crisis and the General Assembly chose a multifaceted solution to that problem,” Feinerman said.
___
The case is LeBron v. Gottlieb Memorial Hospital.
___
On the Net
Illinois State Medical Society: http://www.realitymedicine.com/
Copyright 2008 The Associated Press.
