Obama address causes heartburn for tort lawyers

President Obama's State of the Union speech is already causing consternation among trial lawyers, half an hour before he even delivers it.

According to his remarks as prepared for delivery, Obama will throw a bone to Republicans by vowing to take up medical malpractice reform. For the GOP, that usually means a $250,000 cap on non-economic damages and other restrictions, as spelled out in legislation introduced this week by Reps. Phil Gingrey (R-Ga.) and David Scott (D-Ga.).

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

The remarks outraged Center for Justice & Democracy Executive Director Joanne Doroshow, who testified last week before the House Judiciary Committee that lawmakers should not try to "reduce health care costs on the backs of injured patients."

"To Republicans, this means proposals like across-the-board 'caps' on compensation for patients injured by medical negligence, particularly 'non-economic damages caps' that cover injuries like permanent disability, disfigurement, blindness, loss of a limb, loss of a women's reproductive system, paralysis, trauma, or pain and suffering," Doroshow said in a statement Tuesday evening. "Tort restrictions like these apply across the board to all cases, not just 'frivolous' cases."

Doroshow and others often point to a famous 1999 report by the Institute of Medicine to argue that limiting financial penalties in medical malpractice cases would have deadly consequences for patients. The report, "To Err is Human: Building a Safer Health System," estimated that 44,000 to 98,000 patients a year die in hospitals across the country because of medical errors.

Tort reform advocates, however, say medical malpractice suits are raising costs for doctors and patients. And the Congressional Budget Office made it a budgetary issue during the healthcare reform debate by estimating that tort reforms could shave a half percent off healthcare costs.

In his joint address to Congress on healthcare in September 2009, Obama proposed grants for states to experiment with tort reforms. Those grants made it into the healthcare reform law, but Republicans say it's not enough.

"I don't believe malpractice reform is a silver bullet, but I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs," Obama said at the time. "So I'm proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today."

House Judiciary Committee Chairman Lamar Smith (R-Texas) urged Obama to support the Republican tort reform bill in a statement Tuesday night.

“If the president is serious about bipartisanship and serious about helping the American people with health care costs, he should support the ... bill that allows all Americans to benefit from the reduced health care costs and quality care from malpractice reforms," Smith said.