Obama opens door to medical malpractice reform

Physician and patient
A physician examines a patient at a California clinic.
Photo by Justin Sullivan/Getty Images

President Barack Obama gave a nod to supporters of tort reform during his State of the Union address Tuesday night. Even while defending his health care law, the president said he'd be open to "medical malpractice reform to rein in frivolous lawsuits."

In the past Obama has shown some interest in reforming state medical malpractice laws, but has stopped short of supporting federal caps on damage awards. But that's what Republicans want.

Just this week, two Republicans and one Democrat in the U.S. House Judiciary committee introduced what they're calling the HEALTH ACT -- the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2011.

The three are Committee Chairman Rep. Lamar Smith, R-Texas; Rep. David Scott, D-Ga.; and Rep. Phil Gingrey, R-Ga., who is also a physician.

It's a key part of the Republicans' response to the Democrats' health care overhaul passed last year. One of the bill's central provisions is a cap on damages for medical malpractice.

Supporters of so-called tort reform argue that health providers jack up the cost of health care by ordering more patient tests and procedures to shield themselves from lawsuits.

The president of Minnesota's Medical Association, Patricia Lindholm, is also a family physician in Fergus Falls. She says Minnesota doctors pay some of the lowest malpractice insurance premiums in the country, but they still worry about getting sued.

"Many of us will admit that we sometimes practice defensively, and possibly order more tests than we think are absolutely necessary, because the patient expects the test. Or we're worried that if we don't do it, that something bad will happen, not necessarily based on best judgment," Lindholm said.

The bill in the House Judiciary committee would cap compensation for pain, suffering, and emotional distress at $250,000. For damage awards meant to punish health providers who harm patients, the cap would be either $250,000 or twice the economic damages, whichever is greater.

But attorneys take an opposite view on tort reform. Jim Carey, who heads the Minnesota Association for Justice -- formerly Minnesota's Trial Lawyers -- says punitive damage awards in Minnesota are rare. But they do serve an important purpose in deterring others from committing similar acts.

Carey says there are already mechanisms in place to curb frivolous lawsuits -- judges. He says judges can toss out frivolous cases and sanction the attorneys who bring them. He says reforming malpractice is something best left to the individual states, particularly in Minnesota.

"If we're going to be forced to utilize a different system, it can't go anywhere but downhill. We've already got the system that works the best," Carey said. "So if people want to change a system, maybe they ought to come to Minnesota and look at our system, and utilize it as a benchmark for how to do it right."

Patricia Lindholm of the MMA says a cap on damages would give doctors some breathing room. But she adds that reforming malpractice laws isn't going to solve all the nation's health care problems.

"It's a piece of a more comprehensive reform that needs to happen with other types of reform, like insurance reform and other reforms in how we pay for health care," Lindholm said.

U.S. Rep. Keith Ellison, a Democrat who represents Minnesota's 5th District, says he disagreed with the president on even raising the tort reform issue as a way to curb health care costs -- calling it a "red herring."

"It really doesn't save much at all in terms of health care expenditures," said Ellison. "And yet you could close off a consumer's access to justice when there's a medical error, and so I'm concerned about that."

Sen. Lamar Smith, the Judiciary chairman, released a statement in response to the president's comments about tort reform, challenging Obama to support the HEALTH Act if he is "serious about bipartisanship and serious about helping the American people with health care costs."

Editor's note: The original version of this story incorrectly reported that the proposed cap on punitive damages was $250,000. The current version is accurate.