Despite this, throughout the health care debate, medical liability reform has been glaringly omitted. Senator John Cornyn (R-TX) recently spoke at the Heritage Foundation about the positive impact that reform could have on the health care system. Sen. Cornyn acknowledged that basic medical liability laws are necessary to protect patients against negligence and medical errors. However, the current legal environment—one without consistent state-wide oversight on punitive and non-economic damages—has fostered excessive litigation. In fact, The New England Journal of Medicine estimates that 40 percent of medical liability lawsuits are brought without merit. Excessive litigation encourages the practice of defensive medicine—ordering unnecessary tests, procedures, and referrals for the sole purpose of protecting the doctor against malpractice claims. A recent report found that 93 percent of physicians admit to practicing defensive medicine. Several studies show that this raises the cost of health care by approximately $200 billion annually.

The medical legal environment in many states drives up the price of malpractice rates to as high as $300,000 a year for some specialties. Costly premiums for malpractice insurance translate into higher premiums for patients, as the burden of this additional cost to doctors is passed down in the rates they charge. Doctors may also decide that the cost of practicing medicine is so high that they must close their practices or refuse to perform high-risk procedures, which in turn decreases patients’ access to care and health care quality in general.

Sen. Cornyn described Texas’ successes in achieving medical liability reform to illustrate its merits. Prior to establishing liability restrictions in 2003, Texas was a haven for big medical tort litigation, triggering a dramatic increase in medical malpractice insurance rates. As a result, doctors left the state. Out of the 254 counties in Texas, 99 lost at least one specialist. Unfortunately, the majority of specialists left rural counties, leaving no additional specialists in the area. Access to care and quality plummeted. In 2003, Texas took action by passing comprehensive medical liability reform. The results were outstanding. Malpractice premiums fell by 27 percent on average and 125 counties added a high-risk specialist. Health systems began saving millions in medical liability costs and reinvested those savings in technologies (such as electronic medical records) designed to improve quality of care.

Examples like Texas prove that medical liability reform has a positive impact on the health care industry as a whole. In all, 27 states have enacted medical liability reform, and all states should follow suit. As the massive and hugely unpopular House and Senate health bills stall, and lawmakers look for better options to achieve reform, Congress should examine ways to encourage all states to enact medical liability reform. Doing so will help cut down on the estimated $200 billion annual waste from defensive medicine and improve access to care and overall patient quality. Even the federal government would benefit, as the Congressional Budget Office has reported that the federal deficit could be reduced by $54 billion over ten years due to enacting tort reform. While medical liability reform cannot solve all of the problems with the health care system, without it reform is unfinished business.

Co-authored by Rick Sherwood.

From a lackluster response among the 150 doctors (outfitted in their “spiffy-looking” white coats lest we forgot who they were) at the event to Obama’s same go-to talking points to justify massive federal spending and Washington control of health care, it’s hard to understand how this conference added any value or differentiation from the dozens of other talks the President has given on his health reform push.

“We have now been debating the issue of health insurance reform for months,” Obama said during his quick press conference, which lasted roughly 9 minutes and didn’t include any comments from the visiting doctors or questions from the press. “At this point, we’ve heard all the arguments on both sides of the aisle. We’ve listened to every charge and every counter charge.”

If that’s the case, the Obama administration has likely read the latest opposition from physicians who aren’t lock-step in agreement with the current health reform.

Drs. Donald Palsimano, William Plested II and Daniel Johnson Jr. — all former American Medical Association presidents who weren’t invited to the press conference — in a Wall Street Journal editorial urged Obama and Congress to scrap any idea of a government-run health care plan through a public option or co-op and instead focus on incentives that would foster more of a consumer-driven health system. “One easy reform would be to enable individuals to buy policies offered in any state, not just where they live. This will enhance competition. But more government-run health insurance will only lead to disaster,” the doctors wrote.

Dr. Eric Novack said he was invited to the invite but declined, given his efforts to block any mandates in the health reform that would require consumers to buy health insurance, according to the Association of American Physicians and Surgeons. “I would certainly not be considered a supporter of the current bills that are being discussed by the leadership,” he said.

While Obama scored some applause for his plans to add more regulation on insurers and changing payment formulas for Medicare, doctors were surprisingly quiet when he mentioned that Health and Human Services Secretary Kathleen Sebelius had been directed to run medical malpractice demonstrations in response to physician demands for malpractice lawsuit reform.

That could be, as Heritage analyst Randolph Pate has pointed out , because:
“Upon analysis, however, the President’s medical malpractice proposal is meaningless in the context of the health reform debate and does not affect the trajectory of Democrat health care reform bills currently before Congress in any way.”

Obama rightly claims that physicians are among the most credible stakeholders in the health care debate. They know the system best and can offer valuable feedback in how to effectively improve it. However, physicians are right to stand up and be concerned about how reform would impact their profession and relationship with their patients — a side effect that many fear will drive doctors out of practicing medicine for good.

1) Give states more freedom from federal rules to experiment with reform measures, like medical malpractice reform and allowing people to buy insurance across state lines.

2) Fix the tax treatment of health insurance in a budget-neutral way so that people can buy it outside of their workplace. That way, you would no longer lose your health coverage if you change or lose your job, just as you wouldn’t lose your car or life insurance.

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