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Republicans have a lot of concerns about the Senate health care bill, and one of their biggest is that it does not include any language to rein in lawsuits against doctors.
On Day 2 of the chamber's health care debate, Republican leader Mitch McConnell spoke about the issue on the Senate floor as he encouraged colleagues to send the bill back to committees for some major changes.
"Then we could start over and end junk lawsuits against doctors and hospitals that drive up costs, something the majority didn’t find any room for in their 2,074-page bill — not a word about controlling junk lawsuits against doctors and hospitals," McConnell said Dec. 1, 2009.
That claim has been echoed by other conservatives, including Washington Post columnist Charles Krauthammer.
Their argument for limiting malpractice cases or their awards — supporters call it "tort reform" — involves saving money. If doctors are not scared of being sued, they're less likely to order unnecessary tests and procedures for their patients, thus reducing medical costs.
Indeed, a Congressional Budget Office report from 2004 says health care premiums have risen recently in part "because insurance companies have faced increased costs to pay for claims (from growth in malpractice awards)." More recently, the independent budget office said that medical malpractice reform could save up to $54 billion over the next 10 years.
President Barack Obama addressed the issue at a June meeting of the American Medical Association, saying, "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 understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable."
Nevertheless, Obama said malpractice awards should not be capped, as many Republicans want, because he believes the caps can be unfair to people who are wrongfully harmed.
Former Democratic National Committee chairman Howard Dean, a physician, gave some insight into the issue when it came up in a Virginia town hall meeting last summer.
"Here's why tort reform is not in the bill: When you go to pass a really enormous bill like that the more stuff you put in it the more enemies you make," Dean said. "The reason tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everyone else they were taking on, and that is the plain and simple truth."
So, Democrats have not included medical malpractice limits in either the House or Senate version of the bills. Instead, the administration has said it will give some states $3 million grants to test new approaches for limiting lawsuits.
The two bills don't completely ignore the issue.
The Senate bill includes nonbinding "sense of the Senate" language on page 1,858 that "states should be encouraged to develop and test alternatives to the existing civil litigation system as a way of improving patient safety, reducing medical errors, encouraging the efficient resolution of disputes ... while preserving an individual's right to seek redress in court."
The House bill establishes an incentive for states to adopt alternatives to traditional malpractice lawsuits, but those proposals cannot include provisions to limit attorney fees or impose caps on damages.
So, back to McConnell's claim. He said that the Senate bill does not include limits on medical malpractice litigation, and he is clearly correct. We rate his claim True.
The Congressional Record,
Dec. 1, 2009
The Washington Post, Kill the Bills. Do Health Care Reform Right , by Charles Krauthammer, Nov. 27, 2009
U.S. News, Democrats Avoid Tort Reform in Healthcare Debate , by Kent Garber, Aug. 27, 2009
LegalNewsline, Senate begins health care debate amid calls for tort reforms , by Chris Rizo, Nov. 30, 2009
National Journal, Health Care Push Revives Tort Reform Debate, by Jason Plautz, Sept. 1, 2009
The Washington Post, Obama to Speed Up Tort Reform Tests, but Doctors Want More , Ceci Connolly, Sept. 18, 2009
The Congressional Budget Office, Limiting Tort Liability for Medical Malpractice , January, 2004
The Congressional Budget Office, letter to Sen. Orrin Hatch , Oct. 9, 2009
The House Energy and Commerce Committee, section-by-section summary of HR 3962 , accessed Dec. 2, 2009
The Senate Finance Committee, health care reform bill , accessed Dec. 2, 2009
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