Although most of his health care speech consisted of the same talking points he has been offering for months, President Barack Obama last week offered up one surprise as he sought to make his increasingly unpopular reform bill more palatable for the American public.
“I don’t believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs,” Obama said. He added that he was authorizing Secretary of Health and Human Services Kathleen Sebelius to begin “demonstration projects” in various states to deal with malpractice reform.
The importance of this promise should not be overstated. The “demonstration projects” will be tiny, and they will also be run by Sebelius, who served a longer term as executive director and chief lobbyist for the Kansas Trial Lawyers Association than she did as governor of Kansas. Trial lawyers are far too powerful for Obama to include any legal reforms in his health care bill — as former Democratic National Committee chairman and physician Howard Dean put it, the administration does not want to “take them on.”
Still, it comes as no surprise that Obama felt the need to make some token commitment to tort reform. Even though it’s not exactly a populist issue, most Americans are solidly behind the idea of dismantling the culture of malpractice lawsuit abuse.
A new survey commissioned by the group Common Good and the Committee for Economic Development found that 57 percent of registered voters believe that any health care reform bill should include measures to “reduce the pressure on doctors and hospitals to practice defensive medicine ... to protect themselves from being sued.” Sixty-seven percent liked the idea of having malpractice cases decided by special medical courts, which would be staffed by experts who abide by consistent standards, rather than by nonexpert juries who can be swayed by emotional arguments from slick lawyers, such as John Edwards, a former Democratic senator and trial lawyer.
If the idea of new “medical courts” proves somehow problematic, then caps on noneconomic damages awards are another effective idea. In Texas and Mississippi, tort reforms recently cut down on “jackpot” lawsuits and reversed a trend of doctors and insurers leaving the state, without preventing truly wronged patients from being fairly compensated.
Obama is correct that malpractice tort reform is no “silver bullet.” But if his goal is to make health care and insurance more affordable for the average American, there is simply no excuse for failing to include it in his reform package.