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GOP Pushing Malpractice Reform

Republicans see the debate over health care reform as their latest opportunity to reform the medical malpractice system — but they hold out little hope that this will occur.

The Senate Health, Education, Labor and Pensions Committee’s markup of health care legislation is just the latest skirmish in what has been a long-standing partisan battle — the fight to change medical malpractice laws. The issue has long been a fixture of legislative fights over health care policy.

With sweeping proposals to reform the nation’s troubled health care system expected to be the top order of Congressional business for many weeks to come, the HELP panel is ground zero for many of the debates. Adding to the drama is the absence on Capitol Hill of Sen. Edward Kennedy (D-Mass.), the committee chairman, who is battling brain cancer.

Kennedy has made expanding health care coverage in America his life’s work — and President Barack Obama and most Congressional Democrats are determined to make that happen. In some respects, given their large majorities in Congress, the health care debate over the next few months will be a debate among Democrats.

But Republicans are determined to have a say and are seizing opportunities to score political points — if not shape policy — whenever possible. The issue of medical malpractice is one area where they are hoping to shape the debate by arguing that one way to reduce the cost of health care is to rein in lawsuits against medical providers.

Republicans have long argued that the system is weighted against doctors. They say that limitless damage awards lead to crushing insurance costs for doctors, who pass them along to patients, and that physicians are practicing defensive medicine, which drives up health care costs through unnecessary treatments. Sen. Judd Gregg (R-N.H.) argues that reforming this system will help drive down health care costs and expand coverage.

“We cannot possibly reduce the cost of health care in this country without reducing defensive medicine,” he said.

According to one GOP Senate aide, defensive medicine accounts for a third of health care spending.

Also, Republicans say, the burden of medical malpractice insurance costs drive doctors, especially obstetrics and gynecology physicians, out of practice, leading to less access to this type of care.

Democrats reject this argument, countering that the current system is necessary to protect patients from medical mistakes that can cause them irreparable harm.

“I honestly really don’t see this as a health care issue,” said Sen. Sheldon Whitehouse (D-R.I.). Instead, the Senator, a former Rhode Island attorney general, argued that medical malpractice is more of an “intruder” into the debate to protect insurance companies, hospitals and doctors from being accountable for their mistakes.

Both parties have already gotten into scuffles in the HELP Committee over the issue as Democrats have fought back two malpractice amendments. Many more amendments on malpractice are expected in the committee and on the Senate floor.

Sen. Mike Enzi (R-Wyo.), HELP’s ranking member, withdrew an amendment giving grants to states for the development, implementation and evaluation of alternatives to current tort litigation. A Gregg amendment to cap damage awards against ob-gyn doctors was defeated mostly along party lines.

Gregg had argued that medical liability lawsuits were having a “devastating effect on women and children and pre-natal care.”

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