New Congress necessitates a fresh look at tort reform measures, physicians say

Doctors still push for damage caps but also focus on different reforms.

By Amy Lynn Sorrel — Posted Dec. 4, 2006

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"In with the new" doesn't necessarily mean "out with the old," as physicians revise their medical liability reform strategy now that Democrats are taking control of Congress next year.

Doctors stressed that their priority remains a package that includes a national $250,000 cap on noneconomic damages. Legislation with that limit was deadlocked in the Republican-led Congress that is now coming to a close.

The rise to power of the Democrats, traditionally opposed to liability caps, means that the future of such legislation is even less bright. This political landscape, physician leaders said, is forcing them to take a harder look at alternatives that will help curb excessive litigation and medical liability costs, while treating both doctors and patients fairly.

"We have never seen caps as the total solution to the problem," said Cecil B. Wilson, MD, chair of the American Medical Association Board of Trustees.

The AMA's new plan includes rigorous review of a variety of ideas, such as special health courts, expert review panels and arbitration, that already have debuted on the federal stage, he said.

Still, there is no substitute for what works, Dr. Wilson said.

"Caps are difficult, regardless of who is in power, but just because it's difficult doesn't mean it's not important, and it's been the only thing we've seen truly work," he said. Dr. Wilson pointed to California's MICRA reforms as an example.

Health courts and patient safety measures are "a good first step, but you're not getting at the root of the problem," said David Lovett, a spokesman for Doctors for Medical Liability Reform, a coalition of 230,000 physicians who support federal tort reform.

Meanwhile, doctors are optimistic that the Democratic-controlled Congress will open the door to new opportunities for compromise.

"Both Democrats and Republicans realize there is an access-to-care problem, and even if it's not with the cap, there was more reception to address it," Lovett said.

He pointed to the National Medical Error Disclosure and Compensation Act introduced last year by Sens. Hillary Rodham Clinton (D, N.Y.) and Barack Obama (D, Ill.), as an example. DMLR did not endorse the measure, which sits in the Senate Committee on Health, Education, Labor and Pensions.

In an attempt to find a middle ground, the bill aims to reduce medical liability costs and lawsuits through a voluntary, confidential system of apology and compensation for medical errors.

One innovation gaining traction is health courts, which the American College of Obstetricians and Gynecologists, the AMA and other doctor groups are eyeing closely.

The Senate health committee heard debate in June on the Fair and Reliable Medical Justice Act, which would authorize the Dept. of Health and Human Services to fund a pilot project for the model. Specially trained judges would hear medical liability cases instead of juries, and noneconomic damages would be paid according to a set scale. The measure was sponsored by Sens. Michael B. Enzi (R, Wyo.), health committee chair, and Max Baucus (D, Mont.).

The bill also would test early disclosure and compensation by doctors and administrative determination of compensation by a state-appointed board.

"Conventional approaches will likely have a tougher climate, but there is a sense that we need to think about new proposals with bipartisan support," said Paul J. Barringer III, general counsel for Common Good, a bipartisan coalition that developed the health court concept. In November the group co-hosted a conference with the Harvard School of Public Health at which policymakers and legal experts debated the measure, likely to be reintroduced next year, he said.

Brian F. Keaton, MD, president of the American College of Emergency Physicians, said the group planned to push for legislation that would give liability protection to physicians who provide federally mandated emergency care to uninsured patients.

Under the bipartisan Access to Emergency Medical Services Act, which languished this term, emergency doctors who provide this type of care would be considered public health service employees. The federal government, instead of the doctor, would defend any lawsuits resulting from patient treatment.

"The likelihood of comprehensive reform is less with this [incoming] Congress, but we will work with the new leadership to try to find some solutions," Dr. Keaton said.

State activities to increase

Meanwhile, the bleak future for federal caps will mean a bigger push on the state level, doctors say.

"There has been a lot of activity at the state level, and we will be increasing our resources to help support those efforts," the AMA's Dr. Wilson said.

In 2006, 36 states debated some form of medical liability legislation, such as caps, joint liability reform and apology statutes, according to the National Conference of State Legislatures. Thirteen states passed various measures.

The American Tort Reform Assn., co-founded by the AMA, also expects the real action to continue in the states, said spokeswoman Carolyn O'Malley.

"If Illinois, with a Democratic Legislature and governor, can get something through, I think you'll see more and more efforts," she said. Illinois in 2005 passed a $500,000 cap on noneconomic damages that jumps to $1 million under certain circumstances.

Although federal jury award limits are unlikely, O'Malley said, a piecemeal approach in passing individual liability protections, such as expert witness requirements, is more feasible, whereas prior attempts have been a package deal.

"But it's going to be an uphill battle," O'Malley said.

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A look at alternatives

As optimism wanes for passing federal medical liability reforms with a $250,000 noneconomic damages cap, doctors are giving other measures a closer look. Here's a summary of some bills that were introduced in the outgoing Congress and could serve as the basis of legislation next year:

Fair and Reliable Medical Justice Act: The bipartisan legislation would authorize Health and Human Services to fund state pilot projects for three alternatives to resolve medical liability claims outside of the current court system. They are special health courts, early disclosure and compensation programs, and administrative determination programs. Pain and suffering damages in all three would be awarded according to a set scale.

National Medical Error Disclosure and Compensation Act: The Democratic-sponsored legislation would create a voluntary, confidential process in which doctors could offer an apology and financial compensation to patients for medical errors. The apology could not be used against the doctor if the patient opts to sue.

Access to Emergency Medical Services Act: The bipartisan legislation would protect emergency physicians from liability when providing federally mandated emergency care to uninsured patients. The federal government would defend any lawsuits brought by patients.

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