Not Much of a ‘Compromise’ on Medical Liability Reform

President Obama will unveil the next version of the Administration’s proposal for health care legislation early this afternoon. [1:45 p.m., East Room] Judging by the medical liability section he previewed in a letter to Congressional leadership Tuesday, the differences in the proposals between versions pre- and post-Blair House meeting will be slight.

In September 2009, the President announced a $25 million grant program from Health and Human Services to fund state demonstration programs for “alternatives to the current medical liability system,” paid for by existing agency funds. As written by the Agency for Healthcare Research and Quality, the demonstration projects must address patient safety and risk management AND medical liability. Requiring both elements effectively screens out any serious proposal to cap damages.

In his letter to Congressional leaders, the President said he was open to more, adopting other provisions proposed by Republicans. No. 2 on his list was medical liability reform:

My proposal also included a provision from the Senate health reform bill that authorizes funding to states for demonstrations of alternatives to resolving medical malpractice disputes, including health courts. Last Thursday, we discussed the provision in the bills cosponsored by Senators Coburn and Burr and Representatives Ryan and Nunes (S. 1099) that provides a similar program of grants to states for demonstration projects. Senator Enzi offered a similar proposal in a health insurance reform bill he sponsored in the last Congress. As we discussed, my Administration is already moving forward in funding demonstration projects through the Department of Health and Human Services, and Secretary Sebelius will be awarding $23 million for these grants in the near future. However, in order to advance our shared interest in incentivizing states to explore what works in this arena, I am open to including an appropriation of $50 million in my proposal for additional grants. Currently there is only an authorization, which does not guarantee that the grants will be funded.

Majority Leader Harry Reid’s manager’s amendment version of the health care legislation includes $250 million over five years for the demonstrations. (The section starts on page 344.)

In comparison, in their proposed substitute amendment House Republicans had offered multipoint proposal on liability reform, including:

Sec. 301. Encouraging speedy resolution of claims.
Sec. 302. Compensating patient injury.
Sec. 303. Maximizing patient recovery.
Sec. 304. Additional health benefits.
Sec. 305. Punitive damages.
Sec. 306. Authorization of payment of future damages to claimants in health
care lawsuits.

Thus, the President’s “compromise” on medical liability is to ignore any substantive liability reforms and instead adopt the Senate Democratic majority’s very limited proposal for state demonstration grants. The new element is the President’s state willingness to appropriate money for the program. And that’s it.

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