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As the health care reform debate intensifies, it is apparent that malpractice reform is not a key part of the President's agenda. Though it certainly is not excluded from the debate. Will medical malpractice protection for health care providers be back doored into a final bill on health care? Are the two issues necessarily linked? What would happen to malpractice insurance premiums if malpractice standards were federalized? (I suggest malpractice insurance carriers would not be pleased because their ability to vary rates based upon specialty and region would be controlled. But that discussion has to be left to a subsequent post).

President Obama has repeatedly made the statement that "no government bureaucrat will come between you and your doctor." He stresses in TV talk shows,  town hall meetings  and in his June 2009 speech to the American Medical Association that "if you like your doctor, you keep your doctor, if you like your insurance company, you keep your insurance company."

Is the president suggesting connecting malpractice reforms to doctors and hospitals  who would follow government guidelines?  This is what he said in the speech:
Now, I recognize that it will be hard to make some of these changes if doctors feel like they're constantly looking over their shoulders for fear of lawsuits. I recognize that. (Applause.) Don't get too excited yet. Now, I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue. (Applause.) Now, just hold on to your horses here, guys. (Laughter.) I want to be honest with you. I'm not advocating caps on malpractice awards -- (boos from some in audience) -- (laughter) -- which I personally believe can be unfair to people who've been wrongfully harmed. But I do think we need to explore a range of ideas about how to put patient safety first; how to let doctors focus on practicing medicine; how to encourage broader use of evidence-based guidelines.

Is he suggesting 1) complete preemption of malpractice lawsuits and 2) complete insulation from malpractice liability for a doctor that provides care which meets a government checklist?

It does not appear, yet, that is direction of the debate. One glaring reason? The doctors and hospitals that  provide care which does not adhere to the checklist, even for good reason, may expose themselves to liability. Maybe the checklist becomes outdated and an advancement in clinical diagnosis calls for test on a patient that isn't on the checklist. Is a doctor liable for a bad result by going beyond the checklist even if the checklist is not in the best interest of the patient?

"Evidence based guidelines" mandated by bureaucrats in Washington could end up being a double edged sword for doctors.

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I can't say for sure because I'm a personal injury lawyer and not a doctor. But every time I've had an MRI of my knee, it's because the orthopod thought it was in my best interest to get another look inside the joint.

As fellow trial lawyer Ronald V. Miller Jr. has recently stated in his excellent blog post:

"Let us not pretend that there is no defensive medicine in this country. But we have to take out of the medical malpractice equation three kinds of defensive medicine: (1) tests and evaluation that are actually good for the patients, (2) additional treatment that is motivated, not by fear of lawsuits, but by fear of harm to the patient, and (3) patient induced defensive medicine (i.e. patient seeks tests doctor would not necessarily recommend)."

There is one more reason not mentioned in Mr. Miller's blog post which is also relevant.  The simple fact that medical testing equates to profits for doctors and hospitals is a real issue that we need to deal with when health-insurance reform is discussed. I'm not suggesting that doctors and hospitals shouldn't make money. They should.  And insurance companies are very stingy these days in reimbursing medical providers for the procedures that are billed. But more medical testing on  patients positively affects the bottom lines of medical providers and we, meaning consumers, politicians, and medical providers can't and shouldn't overlook that.

I have tremendous confidence in the orthopedic surgeon that repaired the ACL in my knee. All of the MRIs that I've had on my knee before and after the surgery were performed at a facility affiliated with his hospital.  It was convenient for me and profitable for the hospital that he works for.

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Last week Governor Rendell stated he will not be seeking to renew the state funded subsidy for medical malpractice premiums known as MCARE due to the fact that any "medical malpractice crisis"  is officially over. The Medical Care Availability and Reduction of Error Program, or MCARE provides $500,000 in liability insurance in addition to the $500,000 in coverage medical providers must buy from the private insurance market.

MCARE was designed to provide additional professional liability insurance to doctors and hospitals in Pennsylvania at subsidized, and therefore reduced, premium rates. 

Statewide, there has been a 41 per cent drop in malpractice lawsuits in the last decade. Judicial rule changes and new laws implemented in 2002 have been extraordinarily effective in abating and reducing the malpractice insurance premium rates, Rendell said at a news conference.

The statistics in the report published by the Adminstrative Office of the Pennsylvania Courts, and which Rendell relied upon, make clear that any argument that Pennsylvania is in a medical malpractice crises is simply no longer true. Premiums that doctors and hospitals pay for coverage have gone down. Moreover,today there are 57 carriers writing malpractice coverage in Pennsylvania as compared to 3 in 2002.

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