Why Wasn’t Malpractice Reform Included In The Health Overhaul?

While progressives generally support the new health care law, many remain disappointed that the plan did not include a public option, a national exchange, or stronger rate-review provisions. I share these concerns, but I’m also surprised that the administration did not include stronger malpractice reforms, particularly after it made a big show of incorporating Republican ideas into the final legislation.

Republicans like to talk about capping non-economic damages in malpractice suits. But since that’s failed to significantly reduce health care spending or lower the use of unnecessary treatments, some reform advocates have looked to other alternatives that would lower lawsuit abuse while also reducing the practice of defensive medicine. One such option is a “disclose and apology” model, which encourages providers to “deal with medical mistakes: [r]ather than stonewalling patients and relatives.” As the New America Foundation’s Joann Kenen explains these programs are reducing lawsuits and improving care in some hospitals:

Disclose and apologize doesn’t mean the hospitals or doctors say to a patient or family, “Something went wrong. We’re sorry. Here’s a check. Ciao.” It means, or should mean, they say something like, “You had a bad outcome. We are sorry. We will try to help you while we investigate what happened. If it was our fault, we will take financial and moral responsibility. We will do our best to make sure it never happens again to anyone else.”

Maggie Mahar makes one additional observation about the advantages of this model to the traditional conservative approach of simply capping rewards: “More importantly, tort reform does nothing to improve hospital safety. By contrast, hospitals that “disclose” also “fix.” No one pretends that that the hospital makes no mistakes. They trace what went wrong, (often it’s a system error) and repair.”

Indeed, Senator Obama co-sponsored so-called Sorry Works legislation that would have given physicians who disclosed their errors “certain protections from liability within the context of the program, in order to promote a safe environment for disclosure.” The administration may have been pressured against including the provision in this first reform package, but I suspect they’ll have to revisit it in the future.