“Obama Open to Reining in Medical Suits”

by Walter Olson on June 15, 2009

Confirming earlier reports: “In closed-door talks, Mr. Obama has been making the case that reducing malpractice lawsuits — a goal of many doctors and Republicans — can help drive down health care costs, and should be considered as part of any health care overhaul, according to lawmakers of both parties, as well as A.M.A. officials.” One positive factor for reformers: presidential aide Dr. Ezekiel Emanuel has written that there is “no doubt” that “monumental change” in the malpractice system is called for. [New York Times]

In 2004, Obama was quoted as saying, “Anyone who denies there’s a crisis with medical malpractice insurance is probably a trial lawyer”. Other coverage here, here (Ted at PoL, taking skeptical view) and here. The Times characterizes former Senate leader Tom Daschle as being these days “a strong proponent of linking evidence-based medicine with protections against lawsuits”; it’s not clear how new this development is, or how comfortably it meshes with Daschle’s role as a reliable longtime ally of organized trial lawyers (cross-posted at Point of Law). More: Sean Alfano, CBS “Political HotSheet”; Max Kennerly (on proposal’s lack of clarity); Carter Wood @ ShopFloor (if this is meant as more than a bargaining chip, shouldn’t the Obama administration be looking askance at expanded medical-device liability?).

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PointOfLaw Forum
06.15.09 at 7:21 am

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1 Todd Rogers 06.15.09 at 7:23 am

I’m going to place a gentleman’s bet that the during the course of this phase of his “Hope-Change-Believe” reform, the talking points will be friendly to tort reform and the actions will be friendly to tort-non-reformers. I’ll even predict that some form of the following phrase will be used over and over again – “Which is why I’m creating a tort task force (or a tort czar) who will be headed by a career trial lawyer and active member of the plaintiff’s bar to over see and make recommendations on how we can drive down the greed seeking prices forced upon us by large insurers and mega pharmaceutical companies. I will instruct this czar to use any means necessary, including the courts, to accomplish this mission.” And then everyone will hug; the lawyers however, will wink.

2 William Nuesslein 06.15.09 at 12:01 pm

I am more hopeful than Todd Rogers.

President Obama owes a lot to Ted Kennedy for his successful campaign, and Ted Kennedy is a horrific defender of the extortionist Plaintiff bar. The Senator uses the sophistry that some measure of impact of malpractice litigation is small in relation to total Health Care expenditures.

That President Obama actually rejected Senator Kennedy on this point says a lot for the President. The administration’s position that Health Care costs have to be reigned in is absolutely right. We have to be careful. Like President Clinton, he has too many charlatans among his advisers. Doctor Wolfe, for example. And the healthy lifestyle crowd. Wellneess programs and excessive screenings add to costs without adding to health in any demonstrable way.

By the way, the only way to sell life insurance is to underwrite it. Terminal patients would love to buy community-rated life insurance. The same is true of health insurance. Once we went away from plain vanilla Blue Cross and group coverage, we lost the monopolies that allowed socialization of premiums (community rating). The only way to get that back is to have single payer – Government has its monopoly on taxing . The Germans have a Rube Goldberg system where payments are made from one company to another when one changes health plans, but it seems to complex for me. The Germans are good at engineering complex machines.

It doesn’t help when Republicans use claims of “rationing” as a talking point. The only way for cost to go down is to have somebody doing less of something. Fewer MRIs is rationing MRIs in a way.

3 throckmorton 06.15.09 at 12:28 pm

In one of his meeting with delgates from the AMA, Zeke Emanuel related some of the Obama Administrations tactics for healthcare reform. First, he made it clear that federal tort reform was on the table, but with a price. The price was this. A high percentage of health care dollars are spent in the last months to year or life. Their goal is to decrease this. They want the AMA to play along and push physicians to encourage withdrawl of treatment and to deny treatment for advanced conditions according to a “healthcare czar’s recommendations”. Because it would appear that the government will not pay for certain treatments but private insurance would, it is essential that the AMA play along with the governments recommendations and encourage private health insurers to do the same otherwise the political fallout would be severe. He did mention that it would overall be essential that private insurance only covered what the government did. (They do not want you using your own money to contract for the care that you want in the future.

So, Obama is willing to give tort reform in exchange for the government deciding what medical treatments you can and can not have. The AMA said NO DEAL.

4 Todd Rogers 06.15.09 at 1:55 pm

I would think AARP might not like this idea. Would make instant and very politically active Republicans out of anyone over the age of seventy four. Imagine all the rallies with seasoned-citizens – first we hold a vigil, then we play bingo. I’d think there would be an anti-AIDS/HIV/Pro-gay lobby who might not like this too much, either.

5 John Rohan 06.15.09 at 10:10 pm

It may be a way of getting some Republicans on board. Think about it, what else can Obama offer them and still get universal health care too?

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