Malpractice Reform

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What was missing from yesterday’s White House health bill? Any new ideas that might win Republican support. That’s why I’ve been wondering if President Obama has been holding back, and might have something along these lines up his sleeve at Thursday’s health care summit.

The obvious one is malpractice reform. It’s something that Obama has spoken favorably about in the past. I wouldn’t be at all surprised if he decided to reprise a conciliatory move he made last year behind closed doors. Our friend Jonathan Cohn seems to be thinking along the same lines. And he has some ideas of his own.:

While malpractice may not be a major factor in rising health care costs, the system is clearly broken. It forces doctors to operate under a cloud of suspicion, without necessarily punishing those physicians who are truly negligent. It encourages the use of tests and treatments that are frivolous, if not downright harmful. And it leaves the vast majority of people who need compensation for medical errors with no easy way to get it.

The key is finding ways to fix the malpractice system so that it helps both physicians and the patients, rather than one at the expense of the other. And there are several promising possibilities for achieving that. One is to have doctors report medical errors to hospital administrators, who would then notify patients and begin negotiations. A version of this “sorry works” model is in place at the University of Michigan Health System, where it has reduced lawsuits, cut litigation costs and sped the resolution of cases.

Another idea is to create a no-fault system, similar to the way workers’ compensation works, or to channel most malpractice cases through special “health courts” that would come before jury trials. (The Scandinavian countries and New Zealand have such systems in place.) One other proposal–perhaps the most intriguing–is to tie malpractice to quality incentives, by offering some sort of legal protection to physicians who demonstrate they have abided by accepted clinical guidelines. Not only might such a scheme cut down on frivolous lawsuits. It might also improve the quality of care–which would, in theory, reduce the incidence of actual malpractice.

The good news is that Obama doesn’t need convincing on this front. Back in 2005, while he was still just a senator, he co-sponsored (with Hillary Clinton) a bill that would have implemented a “sorry works” model nationally. It didn’t become law, but Obama kept talking up malpractice reform. Last year, he instructed the Department of Health and Human Services to sponsor a series of demonstration projects around the country.

Michelle Mello, a Harvard professor and leading expert in the field, says experimenting with the different models is precisely the right approach to take–because the data on the different reforms is still very sketchy. But, she adds, the experiments HHS has launched probably won’t go far enough, because they are too limited. To really see which approach works, it’s essential to get more data–and, whenever possible, to get data that covers an entire area (or areas) rather than one hospital or hospital network. Otherwise, it’s difficult to tell whether a program has worked simply because of idiosyncratic factors like a particularly dedicated staff.

This is where the Republicans could push the discussion forward. Both the House and Senate health reform bills encourage more experimentation. But they don’t set aside enough money. If Republicans wanted to do something to change malpractice, they could call for more funding of these programs–and, perhaps, more aggressive guidance about how to handle the results.

Of course, that would mean achieving malpractice reform, a cause they’ve long championed, in a different manner than the Republicans have traditionally embraced. But that’s the definition of compromise: Finding common ground with an adversary in order to achieve a goal you both share. Obama has shown he’s willing to do that. Will the Republicans do the same?

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