“Obama’s medical malpractice opportunity”

by Walter Olson on September 10, 2009

“In his speech tonight, the president shouldn’t forget tort reform.” (John Avlon of the Manhattan Institute, City Journal).

P.S. Maybe he was listening. In his speech tonight, Obama made a non-trivial gesture toward critics’ views on the subject, acknowledging that defensive medicine drives up costs and “prompting an eruption of applause from Republicans at Wednesday’s joint session of Congress.” [UPI]. From the same article:

“I know that the (George W.) Bush administration considered authorizing demonstration projects in individual states to test these issues,” Obama said. “It’s a good idea, and I am directing my Secretary of Health and Human Services (Kathleen Sebelius) to move forward on this initiative.”

On the politics of the gesture, see Jake Tapper/ABC, news-side WSJ (cross-posted from Point of Law).

Some reactions: Dr. Wes notices language recycled from the med-mal plan championed earlier by then-Sen. Obama and Sen. Hillary Clinton (D-N.Y.) My reaction? I think trying a bunch of demonstration projects to see how they work is actually one of the better reform ideas at the federal level, but obviously a great deal depends on how the demonstration projects are picked and designed. Projects might be selected from a list of ideas pre-vetted for acceptability to the litigation lobby, or at worst might even be designed to fail. I agree with Ron Miller: when it comes to actual policy, “Let’s just say President Obama is keeping his options open.” (bumped Thurs. a.m.)

And more: okay, maybe I gave the President too much credit above on having acknowledged the costs of defensive medicine: his exact wording was “defensive medicine may be contributing to unnecessary costs” (emphasis added). Ramesh Ponnuru: “A demonstration project for med-mal reform — don’t we already have one, called Texas?” Carter Wood notes that demonstration projects on med-mal reform have been shot down by Congressional Democrats in recent years. Dan Pero calls the gesture an “olive twig“. And from commenter Jack Wilson: “How come tort reform is the only part of this plan that needs to go through a demonstration project?”

{ 12 comments }

1 Todd Rogers 09.10.09 at 9:10 am

My instinct (based on historical observation and thought-analysis) is that his words won’t match up with his actions – not on this subject, anyway. His statement was really vague and idle when you compare it to the stern warnings he offered on other matters. I having nothing to back it up but I would not be surprised if someone from WH sent a memo over to AAJ in advance letting them know that POTUS was going to toss a paper-tiger on Med/Mal tort reform in to the mix, to placate things.

2 wfjag 09.10.09 at 11:11 am

Since the President has not offered any plan — only made another speech — and since his remarks to the joint session of Congress did not resemble any of the current, pending bills before Congress, why should this remark be taken seriously?

3 Carter Wood 09.10.09 at 2:19 pm

My guess is he was giving an OK to support Enzi/Baucus language that had previously been defeated on pilot projects. I’ve got mentioning the topic on Shopfloor here.

4 Black Death 09.10.09 at 2:37 pm

The truth is that there are already plenty of demonstration projects out there. A number of states have already enacted various tort reforms, including award caps, certificates of merit, adjudication panels, etc. The results of these perojects are eeasy to compare. Real tort reform will lower professional liability premiums and cut back on defensive medicine. There’s no need for demonstration projects to prove this.

5 William M 09.10.09 at 3:10 pm

After ten years of medical practice I can assure you defensive medicine DOES drive up the cost of health care on a number of different levels. I would be happy to give numerous examples if you would like.

William M. MD

6 Walter Olson 09.10.09 at 3:24 pm

It’s true that there is a large existing array of state-enacted reforms to study out there. That doesn’t mean all the reform possibilities have had at least one tryout, though. Health courts, early offers, and scheduled damages have not, to name three. I also I suspect there are things the federal government could do in its role as payor and provider for large sectors of the medical system that would not be merely duplicative of what states have tried to do.

7 Soronel Haetir 09.10.09 at 3:37 pm

Health courts might be enough to finally get the 7th amendment incorporated against the states. Be careful how you tread here.

8 Todd Rogers 09.10.09 at 9:06 pm

William MD, I discuss this with my own PCP and my son’s pediatrician every chance I get. First rule of politics: who gets what and how much? Follow the money.

9 Jack Wilson 09.11.09 at 10:11 am

How come tort reform is the only part of this plan that needs to go through a demonstration project?

10 Soronel Haetir 09.11.09 at 11:38 am

Jack Wilson,

Even worse, tort reform has to *work* in those demonstrations, unlike the other ideas.

11 Michael Kirsch, M.D 09.21.09 at 2:52 pm

Yes, you give the president much too much credit for his limp nod toward tort reform. With respect, this is a joke proposal. To spend a paltry $25 million on some ‘pilot projects’ in his $1 trillion health care reform boondoggle speaks for itself. His language in the speech communicated his disinterest. He stated that the med mal situation ‘may’ increase defensive medicine. ‘May’? Has he spoken to a live physician about this? See http://www.MDWhistleblower.blogspot.com under the Legal Quality category.

12 Jack Wilson 09.21.09 at 3:01 pm

How come only the medical malpractise part of the bill merits a pilot project?

One possible reason: we already know how the rest of ‘universal healthcare’ or ‘single payer’ turns out:

Bad.

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