For many years now the primary reaction of the GOP to any Democratic talk of health care reform has been to scream, "We want malpractice reform first," followed by what ever other means of obstruction that they can think up. Conservatives throughout the land would then nod knowingly and the conversation would turn to other, more pressing matters. But then came 2008 and President Obama.
This guy had a pretty fair election mandate, given the vote totals, and both houses of Congress on his team. The Democrats, thus charged up with victory zeal, went ahead and actually passed a health care reform (HCR) law. But, as we now know, said law did not contain the sacred malpractice reform which those on the right have assured us is all that's needed to make health care affordable for all.
Now, the usual reason given by the GOP is that the Dems. are beholden to the trial lawyers for big campaign contributions so they will never, never I say, do anything to stop frivolous law suits. Since the passage of HCR all we've heard from the right is that they will repeal this awful law and replace it with something better that includes malpractice reform. What sends my blood pressure raging is that, in reality, the federal government can't really do much, if anything, about malpractice reform.
Medical malpractice civil actions are a purely state matter, governed and controlled by state law. Now, if you listen to the Republicans and conservative pundits that little fact gets, shall we say, little notice. In fact, it basically gets ignored. Here's an example from the Wall Street Journal which starts off with the expected position:
Eliminating defensive medicine could save upwards of $200 billion in health-care costs annually, according to estimates by the American Medical Association and others. The cure is a reliable medical malpractice system that patients, doctors and the general public can trust.
But this is the one reform Washington will not seriously consider. That's because the trial lawyers, among the largest contributors to the Democratic Party, thrive on the unreliable justice system we have now.
A careful reading of the whole article does actually, in a sort of back door, off handed way, make mention of the problem:
On July 31, Rep. Bart Gordon (D., Tenn.), a Blue Dog Democrat, introduced an amendment to the House health-care reform bill (H.R. 3200) to fund pilot projects for liability reform, including pilots for "voluntary alternative dispute resolution."
What happened? According to the online newsletter Inside Health Policy, "While Gordon's amendment originally had seven policies that states could implement in order to receive federal funding, the other five suggestions were crossed out . . . due to the agreement with the trial lawyers." (Bold and italics added)
See the catch? The best the federal government and Congress can do is threaten to withhold federal money to states that don't do this or that in order to reform medical malpractice rules. This is that classic form of federal intervention in state law that we enjoyed during the 55 mph years in the 70s and 80s. States had to lower their top speed limit to 55 or they wouldn't get federal highway funds. In the case of medical malpractice I assume that it would be Medicaid funds, or something along those lines, that would be withheld. It is, in point of fact, a method by which Congress could effect the matter at the state level. I just don't think that you can call it malpractice reform.
You see, contrary to what one may think reading this Blog, I'm a firm supporter of State's Rights. But then, so are the Republicans and conservatives who keep pushing for this. My position on this matter is that only the states can, or should, control their own courts and civil practice rules. I can well imagine the conservative outcry if such a federal mandate were added to health care reform. It would be much like the outcry over the insurance mandate that is in the law.
And it's not like the states can't so the job. The WSJ article doesn't mention the Texas law, or those of other states, that have gone a long way to correct many of the problems of the current way we deal with medical malpractice in our society. Some are better than others, but each at least attempts to find solutions. And please, don't forget that from 2001 through 2006 the GOP controlled both houses of Congress and the White House. Why didn't they do something then?
So here's the best advice that an old, retired lawyer can offer regarding medical malpractice reform. The next time you hear a GOP member of Congress spouting off about malpractice reform and what he or she can do about it, ask yourself why he or she didn't do, or suggest, anything within their own state. My guess is that they think that actually doing something doesn't get them elected nearly as well as just complaining about the other side not doing something.