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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.”

But Whitehouse and other Democrats were not convinced. Whitehouse responded that while many Republicans complain about massive settlements, “the settlements are massive because the errors are massive.”

Gregg conceded in an interview that while Republicans will continue to raise the issue and offer amendments, “we won’t win.” Republicans simply lack the numbers to overcome Democrats’ opposition to such reforms.

“The trial bar has an iron-clad grip on the Democratic caucus,” he said.

Some observers say the American Medical Association and other doctors’ groups could put pressure on Democrats to accept some sort of reform in exchange for their support of health reform. However, Gregg said, “Medical providers have never been able to organize enough of an offensive” to force change.

A Republican Senate aide agreed. If the reform bill includes changes to medical malpractice, it will infuriate trial attorneys. A better way to go might be to focus on changing doctors’ Medicare reimbursement rates, the aide said. Doctors have also fought to increase these rates and, unlike tort reform, there is no powerful lobby opposing that issue.

Many observers say the issue is beyond repair because it is so divisive. A former official in President George W. Bush’s administration said the issue is “one of those religious issues where everyone has taken an extreme side and fights it to the death.”

However, the White House has shown some willingness to explore the issue. Obama told AMA members in June that some medical malpractice reforms were necessary as part of health reform.

“I recognize that it will be hard to make some of these changes if doctors feel like they’re constantly looking over their shoulders for fear of lawsuits,” Obama said.

Meanwhile, the AMA is moderating its goals for reform beyond caps on damages, given Democratic control of Congress.

AMA President J. James Rohack said, “In light of the current political climate,” the group is committed to finding other ways to reform the system, including health courts, early disclosure and compensation programs, and expert witness qualifications.

But the trial attorneys’ bar opposes any changes.

Susan Steinman, the American Association for Justice’s director of policy, argued that hospitals and doctors seek additional tests to make more money, not because of the fear of lawsuits. Defensive medicine is not nearly the issue that doctors make it out to be and is more of a red herring to distract from real problems with the health care system, she said.

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