Deep in the report released today by President Barack Obama's debt commission is a proposed overhaul of medical malpractice liability.
The commission is advising Obama and Congress on a plan to cut the federal government's debt, and the 59-page report by the commission’s leaders suggests the government could save about $2 billion a year with major changes to the liability system.
According to the report, “Most experts agree that the current tort system in the United States leads to an increase in health care costs. This is true both because of direct costs — higher malpractice insurance premiums — and indirect costs in the form of over-utilization of diagnostic and related services (sometimes referred to as ‘defensive medicine’).”
The report by co-chairmen Erskine Bowles, a Democrat, and Alan Simpson, a Republican, proposes several changes that the full commission is expected to consider Friday. They include a statute of limitations of “perhaps one to three years” on medical malpractice lawsuits, the creation of specialized “health courts” and new rules favoring health-care providers that “follow best practices of care.”
“Many members of the Commission also believe that we should impose statutory caps on punitive and non-economic damages, and we recommend that Congress consider this approach and evaluate its impact,” adds the report (PDF).
Like other parts of the report, the proposal has the potential to rally opposition by influential constituencies — in this case, the nation’s trial lawyers and consumer groups.
Gibson Vance, president of the American Association for Justice, which represents trial lawyers, is calling the proposal “dangerous,” “radical” and “simply unacceptable.”
“Not once does this report mention patient safety and solving the epidemic of medical errors that plague our health care system, costing thousands of lives and billions of dollars each year,” Vance said in a statement today. He’s a partner at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.
Vance cited recently released studies, including one in an issue last month of The New England Journal of Medicine, finding that harm from medical errors continues to be a significant problem. “The adoption of this commission report will leave Americans with an unsafe health care system that is less accountable and more costly,” Vance said.
Darren McKinney, a spokesman for the American Tort Reform Association, which favors changing the system, said the report is encouraging even if it’s only a recommendation from the co-chairmen. “You’ve got to start somewhere, and we’d certainly endorse any recommendation for reasonable liability reforms as a good place to start,” he said.
A draft that Bowles and Simpson released Nov. 10 contained two sentences on the subject and fewer specifics. The draft proposed to “pay lawyers less” by enacting caps on “non-economic and punitive damages” and other changes to tort law.
Updated at 12:44 p.m. with Vance's statement.