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Medical liability reform, the White House version

Dr. Ezekiel Emanuel, a health care advisor in the Office of Management and Budget, used the White House blog to provide the Administration's rationale for the $25 million in grants awarded for patient safety and medical liability projects. (Earlier POL post.) Emanuel writes, "An Important Step on Medical Malpractice Reform":

The 20 grants awarded today by the Agency for Healthcare Research and Quality (AHRQ) are an important step in the right direction. They will fund programs that aim to reduce avoidable injuries. For instance, one program in Massachusetts aims to reduce errors in primary care physician offices, particularly concerning medications and referrals. Another in Minnesota targets patient safety around childbirth by instituting best practices at 16 hospitals statewide and determining if there is a correlation between fewer complications in childbirth and malpractice suits targeted at obstetricians. A third, in Oregon, will develop and work to implement a "safe harbor" system in which physicians who prove they adhered to evidence based guidelines are protected from frivolous lawsuits.

Many of these grants will rigorously test so-called "disclosure and early offer" interventions, which was the keystone of a 2005 medical malpractice bill proposed by then-Senators Obama and Clinton. These interventions inform injured patients and families promptly and make efforts to provide prompt and fair compensation.

Philip K. Howard, head of the legal reform group Common Good, issued a statement following Secretary Kathleen Sebelius announcement of the grant awards. Howard said:

While some of these projects might improve the process when patients are injured by medical error, none of them protects doctors from lawsuits where there were no errors. This unreliability drives defensive medicine. The Department of Health and Human Services is avoiding the reality that a new reliable system of medical justice is needed to end defensive medicine, a practice which contributes to the unsustainable growth in health care costs. The trial lawyers, a major contributor to Congressional campaign coffers, are the only beneficiary of the current system, and Washington appears unwilling to take them on, especially in an election year. We'll see in the fall elections if voters are still happy to have special interests put ahead of the public interest.

We tend to think the primary reason for the grants is a political one. During the general election campaign, if a challenger charges, "Congress and the Administration just ignored tort reform in the health care debate," the incumbent can say, "That's not true. The Administration right now is examining what works and what doesn't..."

Background ...

UPDATE (12:55 p.m.): We should note that Common Good advocates creation of "health courts" to handle medical liability cases. Other groups like the American Tort Reform Association hold up caps on non-economic damages as more a direct reform, already proven successful in Texas and other states.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.