House Speaker Nancy Pelosi last Thursday unveiled the latest health care reform bill, the Affordable Health Care for America Act (H.R. 3962), with floor consideration possible even as early as Friday. Jennifer Ruben at Commentary reports the legal element, “A Gift for Lawyers“:

A friend points out a little nugget of absurdity and political mendacity in the Pelosi health-care bill. Remember Obama’s effort to try a “test” for tort reform? (We don’t actually need a test, since it has worked to lower medical malpractice coverage and help increase access to doctors in states that have tried it.) Well, Pelosi’s bill has an anti-tort-reform measure. On pages 1431-1433 of the 1990 spellbinder, there is a financial incentive for states to try “alternative medical liability laws.” But look — you don’t get the incentive if you have a law that would “limit attorneys’ fees or impose caps on damages.”… [This] will go a long way toward ensuring that tort lawyers remain rich, malpractice insurance remains high, and unnecessary defensive medicine remains a fixture of the health-care system.

• The Hill, “House healthcare bill cuts incentives to states that cap attorney fees, damages.”
• James Copland, Manhattan Institute, New York Post, “Tort-Bar Treat”
• Stanley Goldfarb, M.D., Weekly Standard, “The Malpractice Problem — We can’t have health care reform without tort reform.”
• Lawrence McQuillen, Pacific Research Institute, Wall Street Journal, “CBO Underestimates Benefits of Malpractice Reform.”
• Dennis Prager, “A Society that Venerates Lawyers More than Doctors”

From page 17 of the American Association for Justice’s third quarter lobbying disclosure form, the “torts” section listing legislation, amendments and issues the trial lawyers’ group lobbied on:

ADDENDUM for General Lobbying Issue Area: TOR – Torts

(Healthy Americans Act) specific interest in provisions in Title VI and VII relating to payments to States for implementing measures related to liability for medical malpractice.

Lobbying with regard to medical malpractice liability as it relates to any health care reform proposal generally.

Affordable Health Choices Act (HELP Committee health care reform bill; unnumbered as of 9/30/2009); specific interest in amendments relating to liability for medical negligence:

Hatch amendment #6, not agreed to; to shield doctors and hospitals from liability for medical malpractice while limiting the legal rights of patients who reside in rural and medically underserved communities.

Americas Healthy Future Act (Finance Committee health care reform bill; unnumbered as of 9/30/2009); specific interest in amendments relating to liability for medical negligence:

Kyl amendment #C25, not agreed to; to cap non-economic damages in all civil medical liability actions against health care providers and health care institutions, to apply new restrictions on expert affidavits that must accompany any health care claim, to eliminate joint and several liability, and to pre-empt state law in civil medical liability actions. (continue reading…)

In a letter to Senator Orrin Hatch (R-UT), the Congressional Budget Office reports that tort reform could save about $11 billion in national health care costs in 2009, or about 0.5 percent of national health care spending.

This letter responds to your request for an updated analysis of the effects of proposals to limit costs related to medical malpractice (“tort reform”). Tort reform could affect costs for health care both directly and indirectly: directly, by lowering premiums for medical liability insurance; and indirectly, by reducing the use of diagnostic tests and other health care services when providers recommend those services principally to reduce their potential exposure to lawsuits. Because of mixed evidence about whether tort reform affects the utilization of health care services, past analyses by the Congressional Budget Office (CBO) have focused on the impact of tort reform on premiums for malpractice insurance. However, more recent research has provided additional evidence to suggest that lowering the cost of medical malpractice tends to reduce the use of health care services. CBO has updated its estimate of the budgetary effects of proposals for tort reform to reflect that new information.

Sen. Hatch issued a statement, “Tort Reform Key to Affordable Healthcare“: ““I think this response from the CBO confirms that there is a growing problem regarding the costs of health care lawsuits. In years past, the CBO mainly focused on the cost doctors’ malpractice insurance premiums and did not adequately address the tendency of doctors to use ‘defensive medicine,’ which does little to promote patient health and serves only to help doctors avoid being sued.”

• Deseret News, “CBO says Hatch is right, tort reform could save $11 billion“
• Washington Post, “CBO: Medical Malpractice Reforms Could Save Up to $54 Billion“
• American Association of Neurological Surgeons and Congress of Neurological Surgeons, “Congressional Budget Office Confirms Medical Liability Reform Will Save Billions“
• Fox News, “Tort Reform Reduces Federal Deficit, Congressional Analysts Say“

Various items of interest on the Congressional debate over health care legislation.

President Obama met at the White House with doctors who support his push for changes in the U.S. health care system. Many attendees belonged to Doctors for America — website here — grew out of the campaign group, Doctors for Obama.  Members overwhelmingly support a public option.

Washington Examiner reports Senate Majority Leader Harry Reid has canceled the Columbus Day recess to continue the work on health care legislation: “Senate Democratic leaders had hoped to begin debating a health care reform bill by next week, but that may slip to the following week because one version of the bill is still stuck in the Finance Committee. The panel had planned to vote on a bill by Tuesday, but it is awaiting cost estimates for the legislation from the Congressional Budget Office.”

U.S. News:”Frist Predicts Tax, Premium Hikes With Democratic Health Bill,” based on an interview with the former Senate Republican Leader, Sen. Bill Frist of Tennessee:

“A plan that I would support would be a plan that would bring in 20 million uninsured, scaled back the benefits toward catastrophic care, and thirdly had incentives for a value-based rather than a volume-based healthcare system,” said Frist, who’s promoting his new autobiography, A Heart to Serve: The Passion to Bring Health, Hope, and Healing. However, he said, none of the current bills meets his requirements. As for the Senate Finance Committee bill, he added, “clearly without amending it, I could not vote for it.” His biggest complaint: “It doesn’t bend the cost curve sufficiently for me.”

The current Republican leader, Sen. Mitch McConnell (R-KY) is now on the Senate floor opposing not just the legislation but the process. He says the real focus should not be on the Senate Finance Committee, but on the House/Senate conference committee, which he predicts will move the health-care legislation to the left. The core of the bill is already wrong, he says, based on Medicare cuts, higher taxes, and more government. But the final legislation will be worked out “out of sight” of the American public.

We see The Wall Street Journal opinion section has now created a website with editorials and op-eds on the President’s health care plans (they’re opposed), “The WSJ Guide to ObamaCare.”

From last night’s speech:

Now, finally, many in this chamber — particularly on the Republican side of the aisle — have long insisted that reforming our medical malpractice laws can help bring down the cost of health care.  (Applause.)  Now — there you go.  There you go.  Now, I don’t believe malpractice reform is a silver bullet, but I’ve talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.  (Applause.)  So I’m proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.  (Applause.)  I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas.  I think it’s a good idea, and I’m directing my Secretary of Health and Human Services to move forward on this initiative today.  (Applause.)

The trouble with the health care legislation now working its way through Congress — starting with H.R. 3200 — is that it overturns all the advantages of employer-based health care and replaces them with mandates, taxes, more government and less choice.

Since we’re headed into the last big summer weekend, the National Association of Manufacturers has used the summertime picnic as a way to tell the story.

The New York Times has more on Rep. Jim Moran’s town hall meeting in Reston last night, during which the topic of tort reform came up. A member of the audience rose to ask the question, and Moran demanded to see his driver’s license, calling him an “imposter.” The Times continues:

The man then asked why tort reform was not part of any health overhaul.

Dr. Dean replied that the more items in a big bill, the more enemies it will have. “The people who wrote it did not want to take on the trial lawyers in addition to everyone else,” Dr. Dean said.

Dr. Dean also said he believed that patients should be able to bring actions against health care professionals, but they should go to arbitration. Then the case could go to trial, he said, but the arbitration verdict should be submitted as evidence. Not much reaction to that either way.

Mr. Moran then apologized to the man whose identity he had questioned and added his two cents about why tort reform was not part of any bill. He said if it were, such a bill would have to go through the judiciary committee, which he said was one of the most partisan in Congress and would never have reported it out.

Why was Dean there, anyway?

UPDATE (4:50 p.m.): The American Tort Reform Association gives Dr. Dean his due, in a news release, “Howard Dean v. Trial Lawyers,” with the secondary headline, “At Town Hall Meeting, Former Practicing Physician and DNC Chief Candidly Explains Why Commonsense Tort Reform Measures Are Absent from Health Care Legislation.”

Former Democratic National Chairman and governor of Vermont, Howard Dean, M.D., was a guest at U.S. Rep. Jim Moran’s town hall meeting in Reston, Va., last night. The D.C. public radio affiliate, WAMU, reports on the contentious meeting, including Dr. Dean’s comments on tort reform:

The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth.

The sound clip is here.

UPDATE: (9:30 a.m.): Other coverage of the good doctor’s statement:

• The Hill, “Vocal minority greet Howard Dean at town hall“: “Dean, a physician, did say that the bill doesn’t include tort reform because trial lawyers would oppose it. …’This bill has enough enemies,’ Dean said. ‘The people who wrote it did not want to take on the trial lawyers in addition to everyone else.’”
• WSJ, “Shouting Activists Pack Rep. Moran’s Town Hall in Virginia“: “Mr. Dean answered a question about medical malpractice reform by saying it was too politically difficult to include it in the bill.”
• Human Events, “Raucous and Staged Moran Town Hall in Reston, VA“: “Dean said tort reform wasn’t included in the health care reform bills because the bills already had enough special interest enemies and anymore enemies and the bill would not have been able to pass.  I am not making this up.”

Good satire from Scott Ott of Scrappleface, writing for The Examiner, “Obama plan creates ‘Public Option’ malpractice law firm“:

With multimillion-dollar jury awards in medical malpractice suits driving up the cost of liability insurance for physicians — and thus the cost of health care to consumers — President Barack Obama today backed a health care malpractice reform plan that would create a “public option” law firm to sue doctors for “reasonable” damages.

“We need to keep these ambulance-chasers honest,” Obama said. “These sharks are becoming obscenely wealthy by tugging the heartstrings of compassionate jurors, who then grant ridiculous damage awards for pain and suffering, which makes malpractice insurance rates skyrocket and jacks the price of health care for everyone.”

Satire with the element of truth. Last month, Linda Lipsen, a top lobbyist for the American Association for Justice, told attendees at the trial lawyers’ annual convention that health care legislation represented a threat because some moderate Democratic Senators could support tort reform. Lipsen specifically mentioned Sen. Max Baucus (D-MT), chairman of the Senate Finance Committee. Senate Budget Committee Chairman Kent Conrad says he would also be in favor of a tort reform component in a health care reform bill.

From the M4 Strategies polling and consulting firm, a news release, “New Poll Shows Two-Thirds of Americans Don’t Think Government Health Care Will Cut Costs“:

In a poll of 1,001 U.S. residents conducted from July 24-27, when asked which would likely have a greater impact in reducing Americans’ health care costs, 45 percent opined national tort reform would be most effective and 16 percent stated they did not know. Only 40 percent were willing to say free health insurance for the poor would have the most impact. The survey has a 3.1% margin of error…[snip]

“It’s clear that Americans aren’t buying Obama’s claim that his health care plan will reduce long term health care costs,” said Chris St. Hilaire, President of M4 Strategies. “More people also believe that tort reform, which Obama opposes, is a better way to cut costs than what he’s proposing.”

Yes, there’s no client listed, cross-tabs or more methodological detail. But it’s clear the public recognizes liability reforms as a necessary element of health care reform.