The Patient Safety and Medical Liability Reform National Advisory Council (NAC) Subcommittee met yesterday in Washington, initiating the long, consultative process that will lead to demonstration projects that will allow Congress to exclude tort reform from any health care legislation because, hey, they’re working on it. Here’s the agenda and a fact sheet on the $25 million White House initiative.

Sherman “Tiger” Joyce, president of the American Tort Reform Association, submitted a written statement to the advisory panel subcommittee, accmpanied by an ATRA news release, “ATRA to HHS: Surest Road to ‘Patient Safety’ is Access to Top Medical Specialists, Drugs and Devices.” Excerpt:

Washington, DC, October 26, 2009 — As a Department of Health and Human Services panel today convened a hearing to begin discussions of medical liability reform demonstration projects, American Tort Reform Association president Tiger Joyce reminded policymakers that, “Without access to the best specialists and live-saving drugs and medical devices, much of the recent talk about medical errors and patient safety could quickly become academic.”

ATRA’s written testimony to HHS’s Patient Safety and Medical Liability Reform National Advisory Council Subcommittee, which conducted today’s tightly controlled hearing here in Washington, “was the only means by which to express our views and it was quite limited in length,” Joyce noted. “An effective medical liability system should provide predictability and fairness, guided by the over-arching principle of equitably and promptly compensating those who are truly injured by medical negligence,” Joyce’s written statement began. “A balanced system also would help to promote access to health care, deter harmful practices, and reduce the cost of wasteful ‘defensive medicine.’ But in these areas, the current system comes up short.

If we tend to cynicism about the medical malpractice demonstration projects — and grants – it’s because President Obama has never asked that tort reform be included in reform legislation, and he’s ruled out caps on non-economic damages. In recent remarks to the National Association of Manufacturers, Health and Human Services Secretary Kathleen Sebelius did not mention the issue. And, as former Vermont Governor Dr. Howard Dean said, “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.”

Take a look at the American Association of Justice’s lobbying in the 3rd Quarter on the issues of health care tort reform. They’re against it.

For all the skepticism this process warrents, comments by an experienced lawyer friend of ours remind us to keep paying attention. He notes that these demonstration projects need not necessarily be directed toward cost savings or the reduction of frivolous litigation. A group could apply for a grant and use the demonstration project to undermine court rulings or past reforms. So examine those grants carefully.

By the way, did anybody see any news coverage of yesterday’s meeting?

Commentary and developments worth noting on the issue of health care legislation and medical liability reform…

The Washington Times editorialized today in “Obama’s malpractice lip service,” reacting to President Obama’s health care speech last week.

Reformers in both parties want to curb abusive lawsuits that drive medical costs through the roof. Yet Mr. Obama could not even bring himself to say that any suits are abusive, but merely that doctors are for some reason practicing “defensive medicine [that] may be contributing to unnecessary costs.” To help pacify them, the best he could offer was to “direct” Secretary of Health and Human Services Kathleen Sibelius to “authorize demonstration projects in individual states to test these issues.”

That is to say, the President was demanding reforms be included in health care legislation, EXCEPT when it came to medical liability reform, which was going to be left to pilot projects overseen by Sibelius — former executive director of the Kansas Trial Lawyers Association. So if a bill actually becomes law, the non-statutory initiatives can fade away.

Even that faint acknowledgement has prompted push back from the trial lawyers. As the Times reports, “Malpractice plan low on support“:

Trial lawyers bristled that a Democratic president had ceded any ground on the issue.

“It has no place in the debate,” said Anthony Tarricone, president of the American Association for Justice (AJJ) [sic], which lobbies for trial lawyers. “Limited accountability will never improve the quality of health care.”

He said malpractice law was a distraction from the real issues of improving quality of care, reducing medical errors and expanding coverage to the millions of uninsured Americans.

The AAJ initially laid low on the issue, figuring that its allies in Congress could keep any prospects for tort reform out of the bill. But business groups, tort reformers and free-market advocates kept up the pressure, and Howard Dean’s frank admission of the trial lawyers’ political power brought much more attention to the issue.

The AAJ has now decided to make a virtue out of necessity, aggressively raising money from its membership to oppose medical liability reform. Yesterday the group sent out a mass email asking for contributions for its Protecting Patients Rights Campaign, a lobbying campaign to oppose medical malpractice provisions in the health care bill. From the website version:

A contribution to the Protecting Patients Rights Campaign is an investment in your practice and in your clients’ future. All the money raised for this campaign will go directly towards educating lawmakers about the dangers of medical malpractice reform, and towards debunking the myths spewed by the other side. We can win, but we need your help today to make a difference in this fight. We need your help today to make a difference in this fight. Please make a contribution via the attached form.

It’s not unusual for trade associations to raise money by pointing to legislative threat, but the AAJ has been politically ascendant since 2008 elections and hence on the offensive. It’s a change to see them return to the defensive posture they were so accustomed to earlier in the decade.

Clearly the AAJ must think the medical malpractice issue has legs. That, or the lawyers’ elected allies on Capitol Hill are asking for some help. (Contributions are non-tax deductible, so they can be used for both partisan and lobbying purposes.) Or warning against catastrophe is a good way to raise money.

Here’s what they’re fighting to preserve (again from the editorial):

A 2006 study by the Harvard School of Public Health found that 40 percent of medical malpractice lawsuits involve either no actual injuries or no medical error — yet of those meritless cases, more than 27 percent resulted in compensation. Meanwhile, the researchers concluded, “The overhead costs of malpractice litigation are exorbitant.”

Similar observations previously made at this Point of Law post.

Below we note a Heritage Foundation column on the attempt to turn Medicare Secondary Payer statutes into a catch-all law permitting lawsuits for this, that and the other thing, i.e., a vast expansion of prospective liability that trial lawyers would seek to cash in on.

The language was added and then dropped from H.R. 3200, the health care bill, during its consideration by the House Ways and Means Committee.

But wait. Covering the hullabaloo town hall sponsored by Rep. Jim Moran (D-VA) last week, The New York Times reported this:

Mr. Moran then apologized to the man whose identity he had questioned and added his 2 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.

But if the Medicare Secondary Payer amendment — a measure meant to expand liability — could go through Ways and Means, why can’t language meant to limit liability also go through that committee?

The Washington Times does a nice job today editorially wrapping up the importance of Dr. Howard Dean’s recent comments about medical tort reform, “Health care run by trial lawyers.” The former governor of Vermont and former Democratic national chairman was the guest of Rep. Jim Moran (D-VA) at a town hall meeting in Reston Tuesday.

The Times, which must have been at the meeting, offers the full quote from Dean explaining why health care legislation did not include any tort reform.

Mr. Dean’s answer was candid: “When you go to pass an enormous bill like that, the more stuff you put in it, the more enemies you make. 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…. This bill has enough enemies. The more groups you take on, the more enemies you make.”

When Mr. Moran retook the microphone, he praised the constituent for “a very good question” and added, “that’s your answer … a good answer.”

A good answer in terms of explanation, but not justification, the Times observes.

On substance, the answer was terrible. Neither Mr. Moran nor Mr. Dean could defend the lack of tort reform in the bill because there is no good, substantive reason for refusing to rein in the wealthy plaintiffs’ bar. There is no good, substantive reason for refusing to protect doctors from ridiculous jackpot justice while the rest of us pay through the nose for the cost of additional malpractice insurance.

The bad, non-substantive reasons is that trial lawyers give lots of campaign contributions to the legislators writing the bill.

See also Mark Tapscott, Washington Examiner, “Dean says Obamacare authors don’t want to challenge trial lawyers.”

UPDATE (11:08 a.m.): Here’s the video via the U.S. Chamber’s Institute for Legal Reform.

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.”

A group, Conservatives for Patients’ Rights, has bought TV time in Washington for a half-hour advocacy program criticizing single-payer health care. The program, done in a professional documentary style, ran starting at 11:30 a.m. Sunday morning on NBC Channel 4 in Washington, D.C., and what we’ve seen has been very critical of the Canadian and British health care systems, although supporters are given an opportunity to speak, as well.

Ah, and now there’s a 30-second spot from activists that supports expanded government control of health care, “Health Care for America,” an attack ad against Rick Scott, founder of CPR and former head of the Columbia/HCA health-care company. You know the kind of campaign commercial – threatening voice, ominous warnings, personal attacks. A writer at the prominent left-wing blog, Daily Kos, described the efforts:

Dr. Howard Dean, from Democracy For America, has teamed up with other health care reform organizations such as SEIU and Health Care For America Now (HCAN), to fight back against the new swiftboating of the public option that we NEED in health care reform…[snip]

Well, we’re NOT going to sit by and let him lie so freely on the air! Let’s help out DFA and HCAN out by FIGHTING BACK HARD TODAY by asking NBC not to violate the FCC laws in running a misleading ad full of deceit, hatred, and lies for the public health of Americans.

Not satisfied with using the many, many resources they have available to them, the unions and activists want to ban speech, prevent expression, block a point of view. It’s typical enough. The SEIU and other unions spend tens of millions of dollars trying to elect candidates and win passage of the Employee Free Choice Act so labor can silence employees and employers who don’t want their companies forced into unionization.

A suggestion to all sides in the health-care policy debate: Let’s support vigorous discussion of all the issues, move deliberately and thoroughly to examine the costs to the taxpayers, the effect on economic competitiveness, and most importantly, the quality and availability of patients’ care. To those who would squelch debate, we ask: What are you afraid of?

P.S. The Washington Post wrote about Rick Scott, Conservatives for Patients’ Rights, and the TV spots in this story, “Ex-Hospital CEO Battles Reform Effort.” 

P.P.S. The NAM’s policy statement on health care and employee benefits is here.  NAM President John Engler had an op-ed on health care policy in Investor’s Business Daily, “Keep Best Of ‘Employer-Based’ Coverage.”