Obama's health care olive branch to GOP addresses malpractice reform

Barack Obama
President Barack Obama signs the two-week funding bill averting a government shutdown in the Oval Office at the White House in Washington, Wednesday, March 2, 2011.
AP Photo/Charles Dharapak

President Barack Obama's budget calls for $250 million in state grants to revamp medical malpractice laws. The grants would allow states to set up health courts -- courts where medically-trained judges, not juries -- would decide malpractice cases.

The Obama Administration's plan throws a bone to Republicans who've argued that the federal health care law does little to stem rising health care costs, particularly in the area of medical malpractice.

Champions of special health courts include Philip Howard, founder of Common Good, a group that contends there's too much litigation in the U.S. Howard said physicians perform more patient procedures than necessary to shield themselves from malpractice lawsuits.

"Doctors order billions in tests as [a] kind of a pathetic effort to protect themselves in cases where if a person got sicker they could show they had done as many tests as possible," Howard said.

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Obama lent credence to the idea of so-called defensive medicine when he told the American Medical Association in 2009 that it's "a real issue" that "some doctors feel they need to order more treatments to avoid being legally vulnerable."

But it's unclear to what extent doctors order more tests because they fear lawsuits or for other reasons such as financial gain, or to satisfy patient demand, as some research has suggested.


A Government Accountability Office report found that patient demand accounted for at least part of the reason spending on imaging services such as MRIs more than doubled between 2000 and 2006, increasing to more than $14 billion.

Howard, who's also a lawyer, said the legal system's adversarial nature makes it one of the worst ways to resolve medical malpractice cases quickly and consistently. He said juries and judges are often ill-equipped to understand complex medical information, and that educating them means a case can drag on for years and end up devolving into a battle of the experts.

"We need people who are neutral, who aren't taking one side or another [and are] doing the best they can to apply standards of care in a consistent way," Howard said.

Under a health court system, judges would undergo special medical or scientific training. The court would also hire so-called neutral experts to help judges decide cases. To further streamline the process, judges, not juries would decide these claims.


There's a problem, however: Eliminating a jury is unconstitutional in most states. The U.S. Constitution's Seventh Amendment guarantees the right to a jury trial in federal civil cases and some state constitutions, including Minnesota's, also ensure that right.

Kathleen Flynn Peterson
Minneapolis attorney Kathleen Flynn Peterson of Robins, Kaplan, Miller and Ciresi at her office in Minneapolis on Thursday, Feb. 24, 2011.
MPR Photo/Elizabeth Stawicki

"A jury system isn't just one person's opinion or two persons' opinions, it's the collective wisdom of the community," said long-time Minneapolis personal injury lawyer Kathleen Flynn Peterson. She said faster isn't always better; justice can be hard work.

Peterson said a panel of jurors is better able to assess the loss of a person's hand or an arm, for example. By comparison, health court judges would consult a set compensation list. Peterson said the problem is that the loss of a hand might be more costly to some people than others. She remembers as a young lawyer asking her mentor how to assess the loss of an arm.

"The first question that was asked of me was did she play the violin? I thought it was an interesting question and a lesson I have always learned was to focus on the individual," Peterson said. "A schedule of benefits doesn't take into account the facts of an individual."

The Minnesota Medical Association, which represents the state's doctors, takes no formal position on health courts.


Dr. Robert Meiches, MMA's CEO, said health courts really haven't been tried and it's not certain even a pilot project would benefit Minnesota. He said other reforms, such as limiting damages on pain and suffering for example, is worth trying first.

"If there is a push to look at medical liability reform in this state, we should put a whole number of things on the table and figure out which ones would be best appropriate to examine in Minnesota," Meiches said.

Some congressional Republicans are skeptical of the president's latest medical malpractice proposal. They say the federal health care law designated only $25 million for those efforts, but administration officials say the new plan goes much further by providing $250 million in funding.



Report: The Moment of Truth: Report of the National Commission on Fiscal Responsibility and Reform