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Tactical Maneuvering on Medical Liability Reform

By | Briefly Legal, Health Care | No Comments

The President’s health care proposal released Monday gave just a passing nod, a tiny quiver of a head shake, to the issue of medical liability reform. Wendell Goler of Fox News asked White House spokesman Robert Gibbs about the absence of tort reform at yesterday’s press briefing:

Q No provision that I see here to accommodate the Republicans call for medical malpractice reform.

MR. GIBBS: Well, first and foremost, the President and the Secretary of Health and Human Services use the authority — regulatory authority that had existed for years to set up demonstration projects in states regarding medical malpractice. And look, Wendell, I think it’s an area which will probably be addressed in the very first section of what’s discussed on Thursday, and I think the President is anxious to discuss it.

Q The President expects Republicans to bring that to the table on Thursday.

MR. GIBBS: I have read that, yes.

Q And does he have an open mind about it?

MR. GIBBS: Absolutely.

Here’s the relevant section from the White House website devoted to the President’s proposal, “Republican Ideas Included in the President’s Proposal,” in which the Blair House confab may undertake to “Review a few of the Republican initiatives included in legislation passed by Congress” (do you like that “a few?”):

Advances medical liability reform through grants to States: Provides grants to States to jump-start and evaluate promising medical liability reform ideas to put patient safety first, prevent medical errors, and reduce liability premiums.

* (Sources: S. 1783, “Ten Steps to Transform Health Care in America Act” (Enzi bill); H.R. 3400, “Empowering Patients First Act” (Republican Study Committee bill); H.R. 4529, “Roadmap for America’s Future Act” (Ryan bill); S. 1099, “Patients’ Choice Act” (Burr-Coburn, Ryan-Nunes bill))

The grant program to states specifically rules out demonstration projects designed to limit medical costs and defensive medicine, so the President does have room to make a gesture — a more forceful nod of the head — toward the Republican position on the issue without getting on the wrong side of the trial lawyer constituency. (See Philip K. Howard, WSJ, “Why Medical Malpractice Is Off Limits.”)