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Medical Liability Reform: An Inside Look at the Obstacles

February 10, 2012
3:19 pm

A great deal of news was made last month when journalist Ryan Lizza gained access to and posted a 56-page memo that was written by White House economic advisor Lawrence Summers early in the Obama presidency, outlining the possible steps the Administration could take in addressing the economic crisis.

Another White House memo unearthed by Lizza, one that received a significantly lesser degree of attention but that is fascinating nonetheless, has also entered the public domain, this one on the decision making process related to medical liability reform.

The July 2009 White House memo, written to the President by advisors Nancy-Ann DeParle and Susan Sher, can be found here.  And the New Yorker blog post regarding the memo is here.

I’ll leave this memorandum for readers to absorb with a minimum of commentary on my part.  There are some interesting points, though, worth noting:

          ·         The memo underscores the challenge in getting liability reform legislation through the U.S. Senate.  As   DeParle and Sher note, “Majority Leader Reid has made it clear that he opposes any medical malpractice reform, creating a difficult environment for Democrats to step forward.” (Although, on a brighter note, the memo states that Senator John Kerry (D-MA) had privately expressed interest in working toward reform and Senator Tom Carper (D-DE) wished to work with the White House on a liability reform proposal.)

          ·         A footnote in the memo undermines the efficacy of caps on non-economic damages as a liability reform option, saying there is no evidence that caps have reduced the frequency of medical liability claims.  (Actually, there have been studies in Texas showing a decline in the number of malpractice suits since the state adopted tort reform.)

          ·         Even though the President didn’t choose it as his preferred option, his advisors did place before him the possibility of providing some form of liability “safe harbor” to physicians who practice evidence-based healthcare guidelines.  The Healthcare Leadership Council is among the organizations exploring this approach as a liability reform option, incorporating investment in health information technology – and the increased ability to access evidence-based practice guidelines — as a factor in providing greater protection to healthcare providers against litigation.

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