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September 20, 2004

Overcoming Preconceptions on Democrats and Malpractice Reform

By Ron Chusid

Thank you for the opportunity to explain why many physicians are supporting John Kerry and John Edwards in light of the frequent attacks on them over malpractice reform. There is a prevailing prejudice that, being attorneys (despite the fact that Kerry worked as a prosecutor, not a plaintiff's attorney) or simply because they are Democrats, they are unlikely to act to resolve the malpractice situation. We are dealing with individual candidates who should be judged based upon the distinct policies and experiences they bring to the table rather than stereotypes as to what Democrats believe in. Basing judgments on such stereotypes has been hazardous in recent years as we went from Democrat Bill Clinton, who championed welfare reform and announced that "the era of big government is over" to Republican George Bush who brought "big government conservative" into the political lexicon.

It is especially dangerous to make such assumption about John Kerry. Kerry has often been characterized as a fiscal conservative who has been a strong supporter of small business and who has broken with his party to support a balance budget. On health care, Kerry has been a pragmatist rather than an ideologue, learning from previous attempts to change the system. The Kiplinger Letter, hardly a publication of the left, has characterized Kerry's proposals as "friendly to small business." Kerry understands that resolving the malpractice situation is necessary, not only out of fairness but because of the need to control these costs in order for his health care plan to succeed. Kerry acknowledged the importance of controlling malpractice-related costs, as well as the prejudices against a Democrat taking action on this issue, in his book A Call to Service:

"Medical malpractice is another area in which my plan would control costs. This is a subject which some Democrats have shied away from, fearing that it might offend trial lawyers, an important source of campaign dollars for many Democratic candidates."

John Edwards has also been a victim of assumptions of being unfriendly to the medical profession. As a physician, I initially had mixed feelings about a malpractice attorney running, but early in the nomination battle did appreciate Edwards' support of physicians' interests related to dealing with HMO's. Edwards' personal knowledge of the malpractice system has allowed him to make valuable contributions to Kerry's proposals for malpractice reform. Edwards has also written in support of doctors on the malpractice issue:

"The rising cost of malpractice insurance for doctors is getting in the way of good health care. In rural areas, some specialists can no longer afford to practice, and patients can't get the care they need. We need to fix this problem now, and we need to fix it in a way that is consistent with the doctors' own Hippocratic Oath: First, do no harm." (Let's Keep Doctors in Business, Washington Post, May 20, 2003.)

John Kerry's proposals on malpractice reform include opposition to most punitive damages, review of claims before a suit could be filed to ensure that a reasonable case exists, encouraging the use of arbitration, imposing sanctions against plaintiffs and attorneys who bring frivolous suits (including adoption of the "three strikes and you're out" provision first advocated by John Edwards), working to reduce medical errors, and elimination of special privileges which allow insurance companies to fix prices and fail to pass savings on to physicians.

Most doctors supporting Kerry initially backed him for reasons other than malpractice reform, such as concern for the 45 million people without health insurance, a desire to keep conservative ideology out of medical and scientific decisions, or because of the harm they see to their patients and practices due to provisions of George Bush's Medicare bill. Fortunately we also found that the conventional stereotypes did not apply and that it was not necessary to compromise desires to reform the malpractice situation by supporting John Kerry. In July 2003 the National Journal had a nonpartisan group compare the health care positions of all of the candidates then running. The survey used lowering malpractice rates as a measure of "reducing the squeeze" on physicians. For his support of caps on settlements, George Bush was not surprisingly ranked near the top, ahead of all the Democratic candidates except one: John Kerry. Kerry came out on top, even ahead of George Bush, despite his opposition to caps.

Kerry's opposition to caps, and votes against bills containing such measures, is commonly used to argue that Kerry opposes malpractice reform. The National Journal study demonstrates that there are other ways to assist physicians on the malpractice issue, and to achieve high marks in this area, beyond caps. While many doctors supporting Kerry do support caps, such measures raise a number of questions, both in terms of efficacy and justice. Cases which are cited to show a benefit from caps are ambiguous as generally other factors have appeared to be responsible for any reductions in malpractice premiums.

George Bush, when on the stump, places the blame for the cost of health care almost exclusively on malpractice. The Congressional Budget Office's study on malpractice found that malpractice only accounts for 2% of health care costs. Those of us in the medical profession suspect that this underestimates all the effects of malpractice, and John Kerry understands this as he includes solving the malpractice situation as part of his plan to lower health care costs. The CBO also found that caps would only reduce insurance premiums by less than half of one percent, hardly making this a reasonable solution for individuals or businesses faced with premiums which have been rising by double digits the last few years.

Caps also present concerns beyond being of limited value. This special treatment for non-economic damages trivializes such damages. If I were to lose my vision, the loss would be far greater than the effects on my income. A loss of a child is a devastating loss which greatly exceeds any economic loses. I have concerns about such losses being handled by arbitrary limits without regards to the circumstances of the individual case. Rather than having politicians in Washington dictate the amount of settlements this might best be left in the hands of local juries which have reviewed individual cases. I find it surprising that conservatives who generally distrust Washington advocate having Congress make such decisions to override decisions made in local communities. Of course I often join conservatives in their distrust of the federal government, especially one in which one party now controls all three branches.

Proponents of caps often cite the more extreme cases found in certain localities, and more often certain specialties, where malpractice is impacting access to care. While physicians, and perhaps the public, give most notice to the occasional huge settlement, the truth is that most malpractice suits do not result in a payment to the plaintiff, and a large percentage of settlements are small enough so that caps would have no bearing. For the typical physician the more important concern is that they are not sued at all, not the maximum size of a possible settlement. This is where John Kerry's proposals have the most benefit as they keep frivolous suits out of the legal system. For those situations where there is a true crisis, and the cost of malpractice is keeping physicians from practicing their specialty, pragmatic solutions could be devised without resorting to caps which do not impact the majority of physicians.

If proposals such as those Kerry has already proposed are not sufficient, this does not preclude the development of further solutions. Kerry's campaign positions represent the first step, not the final word, in his attempts to resolve this problem. As James Carville wrote in Had Enough. A Handbook for Fighting Back, "It seems to me that rather than creating a big fake issue of tort reform as George Bush seems intent on doing, we just do what it takes to fix the problem:" Should measures such as those proposed by John Kerry fail to solve problems for specialties hard hit by malpractice premiums, as a last resort Carville suggests, "We say to doctors that if you're in a high risk specialty, and your premiums go up by a certain percentage in any given tax year, you get a [tax] credit to offset that rise." John Edwards expressed similar goals in the Washington Post article mentioned above:

"Together these measures will give relief to most doctors who are suffering under the staggering weight of insurance premiums. But where premiums still cause shortages of medical care, Washington must provide a temporary subsidy so good doctors can continue their essential work. We shouldn't be padding insurers' profits and hurting people who have already suffered immensely, as the president proposes. But we should be protecting good doctors and the patients who depend on them."

George Bush is out on the stump arguing that "you cannot be pro-doctor, pro-patient, and pro-lawyer; you must choose" as he makes references to Kerry's choice of John Edwards as running mate. Bush has apparently forgotten his earlier claims to be "a uniter, not a divider" but using such polarizing rhetoric to set doctors against lawyers will not help solve the problem. In contrast to George Bush's reliance on ideological rhetoric, both John Kerry and John Edwards approach this from a pragmatic, centrist perspective.

John Kerry and John Edwards have avoided resorting to turning malpractice into a question of being anti-doctor or anti-lawyer. For example, in response to the1999 study by the Institute of Medicine blamed medical mistakes for the deaths of 44,000 to 98,000 hospitalized Americans annually, John Kerry did not join those who used this as an excuse to justify suits against doctors. Instead John Kerry recognized that many of these deaths are due to systems problems and not errors by individual physicians. Instead of seeking punitive action, he recommended looking at current systems, knowing that this will decrease errors and decrease the potential for malpractice cases. While studies vary as to the exact numbers, many articles have made the point that five percent of physicians are responsible for a high percentage of large or repeated malpractice settlements. Rather than taking an ideological stand, we need a president who understands the nuances of individual cases. We must differentiate cases of "bad doctors" who are not properly disciplined from cases where the malpractice situation has gotten out of hand, and apply individualized solutions as appropriate.

By politicizing the malpractice situation, and attempting to pit doctors against lawyers, George Bush makes it harder to come to a common ground necessary for achieving a solution. We need a president such as John Kerry who is willing to go beyond singling out one party as the villains, and look for solutions which really work. John Kerry and John Edwards have been working to break down resistance to tort reform, find solutions fair to both doctors and patients, and are in a position to sell their plans to both Democratic groups and trial lawyers. Just as only Nixon could go to China, perhaps John Kerry, with the help of John Edwards, is in the best position to devise a fair solution which could be sold to both trial lawyers and physicians.

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