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Skepticism builds as tort reform languishes.

As the presidential candidates make their pitches for how best to reform the nation's health care system, physicians aren't holding their breath that medical liability reform will be at the center of the national debate this fall.

All of the GOP presidential hopefuls support medical liability reform in some form, with most endorsing caps on noneconomic damages, and President Obama has paid more attention to the issue than have most Democratic presidents. Still, national physician leaders expressed disappointment in both parties for failing to enact any type of meaningful federal liability reform law, despite years of opportunities.

"Neither side has really been able to deliver on its promises, however big or small," said Dr. Albert Strunk, deputy executive vice president for the American College of Obstetricians and Gynecologists.

President Obama, who does not support the concept of capping damages, pledged to reach across the aisle to work on alternatives to the current medical liability system. In 2010, his administration awarded $25 million in federal grants to researchers looking at disclosure of errors and early offers of compensation to patients. The Affordable Care Act included $50 million worth of additional grants, but those funds have not been awarded because Congress had yet to provide the money.

But those grants were relatively small and so far nothing substantial has come out of the efforts, according to Dr. Strunk, who characterized the president's efforts on medical liability reform as mostly "lip service."

But Republicans do not fare much better in his calculation. Dr. Strunk said Republicans had the opportunity to enact a comprehensive tort reform package when President George W. Bush was in the White House and Republicans controlled both houses of Congress. They failed to do so.

Tort Reform Still a 'Wedge Issue'

One of the major hurdles to passing medical liability reform at the federal level is the need to garner 60 votes in the Senate, where a super majority is needed to prevent a filibuster. Even if a Republican president who supported medical liability damage caps were elected in 2012, it's unlikely that he could get those critical 60 votes in the Senate, said Dr. Stuart Weinstein, a past president of the American Academy of Orthopaedic Surgeons and a spokesman for the Health Coalition on Liability and Access.

"It's an uphill climb," he said.

The Health Coalition on Liability and Access supports a cap on noneconomic damages like the ones enacted in California and Texas, but that policy option is unacceptable to most Democrats in Congress, Dr. Weinstein said.

Over the years, tort reform has become a "wedge issue between Republicans and Democrats.'"

In January 2011, Republicans intro duced the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act, H.R. 5, which is modeled after California's Medical Injury Compensation Reform Act (MICRA), which has been in place for more than 30 years.

The federal legislation, which is supported by more than 100 state and national medical organizations, would place a $250,000 cap on noneconomic damages and would require that medical liability lawsuits be filed within 3 years of injury in most cases. Physicians were hopeful that the legislation might get off the ground, especially after President Obama expressed interest in working to curb frivolous lawsuits in his 2011 State of the Union address. To date, the bill has languished in the House.

Dr. Weinstein said he still hopes that both parties can come together to work on a federal solution to the medical liability problem. The current state-by-state approach is inadequate, he said, because it has led to a patchwork of different malpractice liability laws that are frequently challenged in court, leading to greater uncertainty for physicians.

State-level activity on medical liability reform is likely to continue over the next few years, said Shawn Martin, director of government relations and socioeconomic affairs at the American Osteopathic Association.

One driving force will be the greater involvement of states in the health care arena as they launch the health insurance exchanges called for under the Affordable Care Act. The issue also might come up since many states are considering beefing up their medical licensure standards, he said.

At the federal level, the AOA continues to support a comprehensive package of medical liability reforms, which include a cap on noneconomic damages. But given the difficult political environ-ment, they are also pursuing less politically contentious options such as safe harbors from liability for physicians who meet quality measures and use electronic health records. The organization is also looking at EMTALA (the Emergency Medical Treatment and Active La-bor Act) as an area in which the federal government could offer a safe harbor for physicians.

Over the last few years, physicians have become almost accustomed to the lack of action from Congress in addressing Medicare's Sustainable Growth Rate (SGR) formula.

But the medical liability problem is much different, Mr. Martin said. While lawmakers from both parties agree on the need to fix the SGR, but balk at the cost, major ideological differences stand in the way of federal legislation on medical liability reform.

The other problem for doctors in advancing this issue at the national level is the difficulty in quantifying the costs of defensive medicine, he said.

But defensive medicine is real, said Dr. Glen Stream, president of the American Academy of Family Physicians. It's a product of the fear of litigation that hangs over physicians, he said, and is harming the relationship between doctors and their patients.

Despite the fact that there hasn't been much progress in Congress on medical liability reform, the AAFP continues to push the issue because it's so important to physicians both financially and emotionally.

Dr. Stream said medical liability reform is an issue that he hears about again and again from the organization's members, even in states that have enacted damage caps.

Dr. Stream said he hopes that after the election, lawmakers will continue to think about how to reform the health care system and that medical liability reform can be a piece of that effort.

"Our desire is to bring some rational ity to the system," he said.

One driving force could be states' involvement in the health care arena under the Affordable Care Act.

The state-by-state approach is inadequate, because it has led to a patchwork of malpractice liability laws that are frequently challenged in court, leading to uncertainty for physicians.
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Author:Schneider, Mary Ellen
Publication:Clinical Psychiatry News
Date:Mar 1, 2012
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