In closed-door talks, Mr. Obama has been making the case that reducing malpractice lawsuits — a goal of many doctors and Republicans — can help drive down health care costs, and should be considered as part of any health care overhaul, according to lawmakers of both parties, as well as A.M.A. officials.
It is a position that could hurt Mr. Obama with the left wing of his party and with trial lawyers who are major donors to Democratic campaigns. But one Democrat close to the president said Mr. Obama, who wants health legislation to have broad support, views addressing medical liability issues as a “credibility builder” — in effect, a bargaining chip that might keep doctors and, more important, Republicans, at the negotiating table.
The story (and apparently Obama) is exceedingly light on details, but suggests:
Mr. Obama has not endorsed capping malpractice jury awards, as did his predecessor, President George W. Bush. But as a senator, he advanced legislation aimed at reducing malpractice suits. And Dr. J. James Rohack, the incoming president of the medical association, said Mr. Obama told him at a meeting last month that he was open to offering some liability protection to doctors who follow standard guidelines for medical practice.
And any effort to restrict patients’ legal rights to sue will face tough opposition from the American Association for Justice, which represents trial lawyers and has met with Nancy-Ann DeParle, Mr. Obama’s point person for health reform, to express its concerns. Linda Lipsen, the association’s chief lobbyist, said practice guidelines were established by unregulated medical societies and “should not be conclusive” in a court of law.
What’s that mean? I don’t really know — I suppose they want to make guidelines from the American College of Obstetricians and Gynecologists and the American College of Emergency Physicians have the force of law, or they want to incorporate them as a presumption of meeting the standard of care.
Without more detail, it’s hard to comment on the effects of it. Yet, incorporating these guidelines could make the medical malpractice process even more litigious, since lawyers will argue over whether the guidelines applied and whether the doctor followed them.
With regard to the idea of incorporating them, as I wrote before discussing Comparative Effectiveness Research ("CER"), also pushed by Obama:
Put simply, CER will cut both ways. A doctor who does not utilize a CER-approved treatment will have a lot of explaining to do down the road if that treatment would have helped. Conversely, a plaintiff alleging a doctor should have used a CER-disapproved treatment will have a hard time convincing a jury that the doctor should have overridden the billion-dollar research.
From a liability / malpractice standpoint, doctors who abide by the standard of care should welcome the CER with open arms, as it will give them a powerful tool to wield when a plaintiff’s lawyer later asks "why didn’t you do _____?" They can quite honestly answer "because the CER says it’s not effective."
That may apply the same to "College" guidelines. One problem, as mentioned above, is that the guidelines aren’t necessarily set based on empirical data, and they’re not reviewed by outside sources prior to publication.
We’ll have to wait and see for more information.
[UPDATE: Obama’s speech to the American Medical Association included:
I recognize that it will be hard to make some of these changes if doctors feel like they are constantly looking over their shoulder for fear of lawsuits. Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. And while I’m not advocating caps on malpractice awards — which I believe can be unfair to people who’ve been wrongfully harmed — I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.
So he might be talking about CER after all. If so, I think that’s a good thing for everyone. One problem for both physicians and plaintiffs is that, in many areas, the "standard of care" is frustratingly unclear. If CER can be used to create those standards, all the better.]