Posted by Wendell Potter on January 28, 2011

Wendell PotterBy devoting just two minutes to health care reform in his State of the Union address -- and not mentioning it until half way through the remarks -- President Obama was signaling Americans that he believes the health reform debate is over, that Republicans would be wasting precious time by "refighting the battles of the last two years."

While noting that "anything can be improved" and that he would welcome ideas to improve the bill he signed into law last March, Obama offered only two subjects that might warrant renewed attention -- and one of those is sure to set off alarms among consumer advocates and trial lawyers, though changes seem unlikely.

Obama's first topic was a provision of the law mandating more IRS filings -- a provision that is universally loathed by employers. Changing it will likely draw little opposition, even if doing so means the loss of billions of dollars every year in tax revenue that drafters of the legislation were counting on to help pay for expansion of coverage. The president called the provision a "flaw … that has placed an unnecessary bookkeeping burden on small businesses." The IRS has estimated that the government loses more than $300 billion in tax revenue annually because of inadequate reporting requirements. But since businesses hate the new requirement and lawmakers are not likely to fall on their swords to preserve it, that provision will likely be the first -- and maybe the only one -- that will draw the bipartisan support necessary to strip it from the measure.

Consumer advocates and trial lawyers will care far less about that provision than the other topic on which the president said he was open to working with Republicans. In a line that brought GOP members to their feet, the president said he would welcome their ideas on medical malpractice reform to reduce overall health care spending and, ultimately, the deficit.

"I'm willing to look at other ideas to bring down costs," he said, "including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits."

Tort Reform or Evidence-Based Medicine?

Even though the president adopted the Republican's language -- "frivolous lawsuits" is a focus group-tested term long used by the GOP and the American Medical Association and corporate proponents of tort reform -- it is doubtful that Obama and the loyal opposition will share much common ground when it comes to the details of remaking malpractice laws.

Republicans have long championed a cap on liability, as Texas enacted a few years ago, limiting punitive (pain and suffering) damages to a certain dollar amount. In Texas, the cap was set at $250,000. Trial lawyers and consumer advocates oppose such caps, and the president probably will as well.

Instead, the president has indicated in the past that he favors another path to reducing lawsuits: encouraging the use of evidence-based medicine. Getting Republicans to go along with that approach will be a heavy lift; they have been highly critical of provisions in the law that establish pilot projects to explore the effectiveness of evidence-based medicine. In fact, Republicans will likely try to cut off funding for those and other pilot projects as part of their strategy to thwart the law's implementation.

Peter Orszag, the former White House Director of the Office of Management and Budget, explained the president's thinking on malpractice reform in an October 20, 2010, op-ed in The New York Times.

"The traditional way to reform medical malpractice law has been to impose caps on liability -- for example, by limiting punitive damages to something like $500,000," Orszag wrote. "A far better strategy would be to provide safe harbor for doctors who follow evidence-based guidelines. Anyone who could demonstrate that he has followed the recommended course for treating a specific illness or condition could not be held liable."

So while the president seemed to be throwing a bone to Republicans in the name of bipartisanship, tort reformers will likely be disappointed if they think the president and Republicans in Congress will agree on how to make "frivolous lawsuits" a thing of the past.

Comments

I wish we could just stop the inanity of this discussion and implement single payer or nationalized, whatever you call it, the current system is untenable.

Granted there were a few good things that came out of the Health Care Reform Act, like the end of recision, and things of that nature. But the Act did nothing to really contain costs. A public option would have helped in that regard.

I can't understand the opposition to nationalized health care either. Right now it's all about the insurance companies but look, they had a nice ride all those years and made hundreds of billions of dollars doing so, but the party would be over for them and their shareholders.

Look at it from the perspective of other businesses. The small businesses who can now afford to pay more to their employees because they don't have the onerous burden of health care premiums to pay.

More money into the economy - there's an interesting thought. Nationalized health care would be good for the country as a whole, but bad for the small coterie of insurance companies. I wouldn't shed a tear if tomorrow we had a national system and the insurance companies were just distant memories.

Add that we are on the cusp of making dramatic extensions to human lifespan. I hear naysayers complain about overpopulation but if lifespans extended out to say 150 years the pressure to reproduce is reduced if say 100 or more of those are the fecund years.

...but if lifespans extended out to say 150 years the pressure to reproduce is reduced if say 100 or more of those are the fecund years."

The pressure to reproduce might be reduced, but the urge to do that which initiates reproduction probably would not be.

Not to worry, though. The privilege of life extension probably wouldn't trickle down to that many of us ordinary folks, any more than Congresspersons' health coverage has.

EXCELLENT comment!! I was hoping for the public option we so desperately need. Amazing that all other industrialized countries have it as a right for their people. I'm afraid this country is too stupid to insist on what is best for all. It's too bad that Obama has been bought out by the lobbyists. What a bitter disappointment he has been - a total wimp!

A total wimp would have caved to the ultra left three years ago. I actually think Obama is more centrist than he promised to be during his campaigning.

I think presenting proof you've purchased health insurance should be a mandatory requirement to buy a gun. Coverage for treatment of gunshot wound would be an optional extra.

...should be a mandatory requirement for the purchase of a gun. We could take that argument further and make it a requirement for owning a motorcycle. Even more, a requirement to pay extra health insurance if you refuse to wear a helmet. This could be a very slippery slope to requiring us to do all sorts of things in order to have health insurance. I prefer we not go there. We either insure people, or not.

If you choose the public option, you get to buy a genuine full-auto M-16. Not some cheap third-world AK-47 knockoff, but the very weapon our own troops fight with! Who says universal coverage has to be socialistic?