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 Maybe the checklist becomes outdated and an advancement in clinical diagnosis calls for test on a patient that isn’t on the checklist.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.
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases.