Howard Dean on Obamacare and med-mal reform

by Walter Olson on August 29, 2009

Perhaps the most buzzed-about story while I was on vacation (I’m back now) was the frank acknowledgment by former Democratic Party chairman (and former physician) Howard Dean when asked why liability reform was omitted from the health care redesign. FirstAidIconFrom the New York Times “Prescriptions” blog:

The man then asked why tort reform was not part of any health overhaul.

Dr. Dean replied that the more items in a big bill, the more enemies it will have. “The people who wrote it did not want to take on the trial lawyers in addition to everyone else,” Dr. Dean said.

Dr. Dean also said he believed that patients should be able to bring actions against health care professionals, but they should go to arbitration. Then the case could go to trial, he said, but the arbitration verdict should be submitted as evidence. Not much reaction to that either way.

Mr. Moran [Northern Virginia Congressman Jim Moran] then apologized to the man whose identity he had questioned and added his 2 cents about why tort reform was not part of any bill. He said if it were, such a bill would have to go through the judiciary committee, which he said was one of the most partisan in Congress and would never have reported it out.

Commentary: Mark Tapscott/Examiner, Washington Times, Darrin McKinney/ATRA, Dan Pero linking Tiger Joyce/Investors Business Daily, Charles Krauthammer/FoxNews.com via Carter Wood/PoL and NRO “Corner”, Fred Barnes/Weekly Standard.

Relatedly, Philip K. Howard writes on “Stonewalling Legal Reform“, citing a Jon R. Gabel piece in the Times that rebuts a much-touted-by-trial-lawyers Congressional Budget Office report minimizing the likely cost reductions from malpractice reform. From the American Spectator Blog, “Conservative Leaders on Costly Lawsuits and Health Care Reform“. And Ramesh Ponnuru at NRO reiterates his argument that while malpractice reform is a good idea, it shouldn’t be imposed on the national level by the federal government.

More: Jim Lindgren at Volokh Conspiracy skewers an appalling report on health care “myths” which received, but did not deserve, the imprimatur of Indiana University.

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1 Dr. T 08.29.09 at 5:09 pm

I agree with Dr. Dean, the Obamacare bill already has far too much in it. It’s hard to imagine a bill to create a federal health insurance program running to over 1000 pages. It should be shortened. Dramatically shortened. It should look like this: All existing federal programs that are in any way related to health care shall combined into a program called “Obamacare.” However, no changes will be made to any of the programs.

Congress can pass this two-sentence bill, and Obama can sign it and take credit for the glorious health care package that he bestowed upon the people.

2 P 08.30.09 at 12:39 pm

Med. mal. caps are very confusing to me. For example, in Georgia, if a doctor commits fraud against a patient, then the patient’s non-economic damages are not capped. Or, say the doctor’s vehicle hits the patient’s vehicle as both the patient and doctor leave the hospital, then the patient’s non-economic damages are not capped. But if the doctor clearly botches the same patient’s surgery, and the patient is on a ventilator for the rest of her life (and is totally able to comprehend everything that is going on around her and she cannot speak), then the patient’s non-economic damages are capped at 350K. I am all for cutting frivolous lawsuit but how is this fair?

3 SmartDude 08.30.09 at 1:26 pm

The democrat party is heavily financed by the trial lawyer industry, meaning that there will NEVER be any tort reform from these folks.

End of story.

4 Walter Olson 08.30.09 at 8:08 pm

>P: “in Georgia, if a doctor commits fraud against a patient, then the patient’s non-economic damages are not capped”.

I’m not really sure what P is asserting here. I cannot speak with knowledge of Georgia law, but I believe in an ordinary fraud case against a doctor (say, over fraudulent billing) there would be no right to recover damages for pain and suffering, emotional distress, loss of enjoyment of life, etc., so there is nothing to cap. Perhaps P would care to elucidate.

5 P 08.30.09 at 9:30 pm

Say that the doctor committed some type of fraud against the patient, e.g., represented that he had the training and experience to do a certain procedure, when he, in fact, did not; a doctor told the patient that X hospital had all the equipment that was necessary to do Y surgery, the hospital did not, and the patient was harmed thereby.

6 Max Kennerly 08.31.09 at 12:06 am

Dean’s answer reveals a bit more to the subject. Although tactical concerns were obviously at play (as they are with all legislation), the simple fact is that Democrats and centrists don’t agree on if there even is a tort “problem,” much less on the solutions to the “problem.”

Take Dean’s “non-binding, but admissible arbitration” example. I don’t know of a single lawyer (of any political persuasion) who agrees with that since (1) it violates the basic legal principle that a later factfinder should not be tainted by prior findings and (2) it’s unclear what, if anything, it would do except add more delay and more costs to the process.

Conservatives are no help in this regard: most blindly adopt any “reform” that appears anti-plaintiff, regardless of the merits.

7 William Nuesslein 08.31.09 at 7:07 am

Max Kennerly comments:

“Conservatives are no help in this regard: most blindly adopt any ‘reform’ that appears anti-plaintiff, regardless of the merits.”

It is abundantly clear that juries generally are incompetent with respect to medical matters. It was the Levine decision that blindly celebrated the prerogative of juries to find facts that weren’t there.

I am not a conservative, but I know of no tort reform proposals without solid argument.

8 Max Kennerly 08.31.09 at 11:38 am

William,

I’d like to know what you base your “abundantly clear” conclusion on. Last I looked, a 2006 Harvard Medical School study found juries generally (about three-fourths of the time) found, or did not find, negligence in the same circumstances in which a panel of experts would. There’s no evidence (or sensible argument) that shifting to a different fact-finder, like a judge, arbitrator, or court-appointed panel, would do any better.

9 Bill Alexander 08.31.09 at 3:33 pm

I believe Max that the problem is not so much juries finding negligence but rather the huge jackpot awards sometimes given out.

10 William Nuesslein 09.01.09 at 8:00 am

Max,

Three quarters is not 98%. I was impressed by Peter Huber’s work in “Galileo’s Revenge” where he covers fetal stress cases and the anti-nausea medicine cases. Then there were the breast implant cases and of course the horrific Levine case. Daubert deals directly with incompetence of juries.

11 P 09.02.09 at 10:18 pm

Why won’t Walter Olson answer P’s question?

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