Medical Malpractice Reform, the Administration’s Signals

Below we linked to stories about the White House holding out the possibility of medical malpractice reform as an element of a broader government restructuring of health care.

A serious offer to win more acceptance from the medical profession and business? Or just positioning, talking points to move the debate forward even as the public recognizes that the costs of “reform” are staggering?

Well, here’s one way to tell. This Thursday, the House Energy and Commerce Committee, Health Subcommittee, holds a hearing, “‘Medical Devices: Are Current Regulations Doing Enough For Patients?‘”

As an industry, medical device manufacturers rank as a priority target for trial lawyers: The companies do make money and for all the lives the devices save, nothing is perfect. We exist in a world of risk. The one-in-a-million malfunction can, in isolation, produce a compelling story of individual suffering that leads a jury to hand out a huge award.

The hearing Thursday figures to be a follow-up to the subcommittee’s session in May on H.R. 1346, the Medical Device Safety Act. (We blogged about the hearing here, here and here.) The goal of the bill is to end legal protections gained by the device manufacturers when their products win FDA regulatory approval. The bill would end this federal preemption and allow litigation ins state courts, in effect creating a 50-state regulatory regime — costly and capricious.  As the Washington Times editorialized, “This bill would kill innovation.” More lawyers and their clients would win gigantic awards, but medical advances would be hampered and health care costs would increase.

So here’s at least one way to judge the Obama Administration’s seriousness about tort reform as an element of broader health care legislation: If an Administration official testifies at the hearing in opposition to H.R. 1346, that’s a good sign the White House regards tort reform something other than a mere talking point, raised and then abandoned as a negotiating tactic.

UPDATE (noon): Wall Street Journal Law Blog, “Will Obama Buck Dems on Medical Liability?“:

But to deliver a deal with doctors, Obama would probably have to defy senior members of his party in both houses of Congress. Many Dems oppose putting limits on medical lawsuits because they believe it is ineffective and unfair to patients. Senator Harry Reid of Nevada, the Democratic leader, has, for instance, called “the whole premise” of a presumed medical-malpractice crisis “unfounded.”

And any effort to restrict patients’ legal rights to sue will face tough opposition from the American Association for Justice, perhaps not surprisingly. Linda Lipsen, the association’s chief lobbyist, said practice guidelines were established by unregulated medical societies and “should not be conclusive” in a court of law.

UPDATE (1:15 p.m.): President Obama tells the AMA:

I want to be honest with you. I’m not advocating caps on malpractice awards (murmurs, laughter) which I personally believe can be unfair to people who have been wrongfully harmed. But I personally I think we need to explore a range of ideas about how to put patients’ safety first, how to let doctors focus on practicing medicine, how to encourage a broader use of evidence-based guidelines.

Full sound clip of the President’s remarks on tort reform. It’s 1 minute 50.

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