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Addressing the Costs of Medical Malpractice
In his State of the Union address, President Obama defended his signature health care reform law while acknowledging that further steps must be taken to reduce the significant proportion of spending devoted to health care. In a nod toward bipartisanship in this contentious debate, the President expressed a readiness to consider approaches that he had previously rejected. “I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year ' medical malpractice reform to rein in frivolous lawsuits.”
The President followed through on this pledge by including $250 million in his budget for grants to states from the Justice Department (DOJ) in order to implement tort reform measures in the area of medical malpractice. It is perhaps an indication that the President does not believe that any such new programs will actually save any money that his budget does not attribute any savings to this expenditure.
The DOJ grant program describes a number of possible reforms that would qualify for funding. These include the creation of health courts in which the right to a jury trial is taken away and replaced by specially trained judges who decide cases using workers' compensation style damages schedules. Written clinical guidelines designed to provide a cookbook approach to treating patients is another potential avenue of reform. Under this law, doctors would be given immunity from suit if they followed the guidelines. Another program that is actually being used successfully by some hospitals around the country is a “sorry works” plan in which the provider discloses mistakes, apologizes and makes an early offer for compensation. Other suggestions include changes to collateral source rules and apportionment of fault to replace joint and several liability.
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