Organized medicine aims to strengthen liability provisions in reform bill

When lawmakers get back to considering health system reform legislation this fall, physicians seeking relief from medical liability pressures will be looking to revise and fortify protections that made it into the House Energy and Commerce Committee's latest version of the House reform bill.

An amendment offered by Reps. Bart Gordon (D, Tenn.), Jim Matheson (D, Utah) and Nathan Deal (R, Ga.) would offer financial incentives to states that enact certain liability alternatives that meet federal standards -- as long as they do not limit attorneys' fees or impose damage caps, which President Obama and many congressional Democrats oppose.

The provisions were wrapped into an amendment offered by Rep. Mike Doyle (D, Pa.) and approved by the Energy and Commerce Committee in a July 31 voice vote as part of a deal between Democratic leaders and the conservative Democratic Blue Dog Coalition. The Commerce version must be reconciled with two other measures that lack medical liability reforms before the full House can take up the bill.

The liability provisions lack details. But in general, qualifying states would need to show that their reforms:

• Make the medical liability system more reliable through the prevention or prompt and fair resolution of disputes.
• Encourage the disclosure of medical errors.
• Maintain access to affordable liability insurance for physicians.

Other approved options outlined in the amendment include laws requiring the filing of an expert opinion, or certificate of merit, on the validity of a case before it can proceed. It also would support early-offer programs, in which doctors or other health care entities compensate patients for alleged medical errors without going to court.

The incentive payments, while not specified, would need to be used to improve health care in the states. The Dept. of Health and Human Services secretary would submit to Congress an annual report on the progress and effectiveness of states' liability laws.

A separate amendment offered by Rep. Frank Pallone Jr. (D, N.J.) and agreed to by a July 20 voice vote would limit liability for physicians who volunteer across state lines in federally declared emergency or disaster situations.

American Medical Association President J. James Rohack, MD, said the AMA was encouraged by the vote to add medical liability reforms to the House bill, "as it is needed to reduce unnecessary costs to the health system. ... This is an important step in the right direction."

Representatives of organized medicine and other tort reform advocates say the measures, if passed, would be key to reducing health care costs driven by frivolous lawsuits and litigation expenses. The AMA continues to favor noneconomic damage caps. But the Association plans to press for other comprehensive measures to help cut down on defensive medicine practices.

Uphill battle

Some resistance may lie ahead, however.

"The next big step is to see whether we can keep the [Energy and Commerce] language in the House bill when it reaches the floor, and we'd like to think that because it passed unanimously that it won't be controversial," said Mike Stinson. He is chair of the Health Coalition on Liability and Access, a broad group of physician organizations that includes the AMA, as well as patients, liability insurers and other health care entities that advocate for medical liability reform.

"But stripped out were definitions of those [certificate-of-merit requirements and early-offer programs], so it's still very vague," he said. "And if it goes through as is, we're looking at an extensive lobbying effort to define them adequately in regulation."

Energy and Commerce Democrats were able to sustain opposition to several other proposals containing liability alternatives that have won the support of organized medicine.

Struck from the Gordon amendment was a provision that would have allowed physicians to apologize to patients for bad treatment outcomes without those statements being used against them in court. Also stripped from the amendment were provisions supporting medical review panels and voluntary alternative dispute resolution mechanisms. Another excised proposal would have allowed state pilot programs to offer liability safe harbors for doctors who adhere to evidence-based guidelines.

Lawmakers voted down a separate amendment proposed by Deal that would have shielded emergency doctors in general from liability if they referred nonemergent patients elsewhere.

Rep. Michael Burgess, MD (R, Texas) unsuccessfully pushed an amendment modeled after Texas' 2003 reforms, which capped noneconomic damages at $250,000 for physicians and included a range of other liability reforms, such as expert witness qualifications.

"In the end, the part that probably killed it on arrival was the fact that it included caps," Stinson said. Although disappointed that the other measures did not succeed, the HCLA "will continue to focus on realistic goals and look at alternatives to at least help some of those states that are still in lousy situations but don't have the ability to pass reforms," he said.

There is a modest role that tort reform can play in restraining health care costs, said Michelle Mello, a professor of law and public health at Harvard University School of Public Health in Boston. A recent study she co-authored noted that defensive medicine costs are difficult to estimate. "But even if we conservatively estimate it at 1%" of all health care spending, or $22 billion per year, "that's still a lot of money," Mello said.

The report, which appeared in the July 2 New England Journal of Medicine, went on to highlight specialized health courts, early-disclosure and early-offer programs, and evidence-based safe harbors as promising liability alternatives. Because they remain largely untested, however, "it's going to take a fairly brave policymaker to say we are going to try this," Mello said.