Summary
One of the few things which President Obama said in his Address on Health Care to a Joint Session of Congress this past week which brought Republicans to their feet was the offer of changing the current medical malpractice system as part of health care reform. To the extent that the President is still serious about attracting more than Senator Olympia Snowe (R-ME) to support an ultimate bill, he would be wise to include this is any final legislation coming out of the Joint Conference Committee.
Analysis
Primarily Republicans have been fighting to include tort reform, especially of the medical liability system, into national legislation of one form or another for decades. Usually, since this system pertains to "protecting the health, safety and morals of its people" (a power delegated to the states), there have been constitutional grounds raised (primarily by Democrats, the trial lawyers lobby's biggest supporters) to prevent any federal legislation from ever getting passed.
However, as has become evident over the past few months, including some such medical liability measure in any final national health care reform legislative package may give the President his only chance of being able to preserve other measures which his more progressive friends in the Congress really want (like some form of public health insurance option). This is the kind of horse trading which will need to occur over the next two to three months for true national health care reform to be passed this year.
It would seem that the American people (not just physicians and Republicans) also are in favor of including an overhaul of the medical liabllity system in any national health care reform legislation that makes it to the President's desk. According to a new nationwide poll published the morning after President Obama's Address on Health Care Reform to a Joint Session of Congress this past Wednesday, a full 83% of the nation's electorate want Congress to address reform of the medical malpractice system as part of any health care reform plan. A full 72% of voters think the fear of being sued often changes the way doctors deal with patients (i.e. they practice "defensive medicine"). Finally, 67% of voters favor special health courts deciding medical malpractice cases rather than the regular court system.
Specialized health courts are similar to special bankruptcy and tax courts, where medical liability actions may be decided more quickly and much less expensively using consistent standards. The judges of these courts who have specialized knowledge in medical liability cases, similarly to judges in bankruptcy and tax courts having specialized knowledge in those areas. To get around constitutional issues, plaintiff's would still have the option of going through the regular judge and jury based court system.
Decisions in specialized courts would be driven to a much greater extent than the regular courts system on whether defendants had adhered to best evidence based medical practice standards. Identifying, retrieving and presenting these best practices in real time to physicians, who, in following them, would go far toward protecting them from liability determinations in health courts will constitute a valuable service to physicians. Companies poised to provide these services include:
1. General Electric;
2. Siemens;
3. Cerner;
4. McKesson;
5. eClinical Works;
6. Quality Systems, Inc.
7. Epic Healthcare Systems;
8. Allscripts;
9. Eclipsys Healthcare; and
10. IBM
This author consults with leading institutions through GLG
Analyses are solely the work of the authors and have not been edited or endorsed by GLG.
