Trial lawyers to Obama: Don’t deal on tort reform in healthcare neogtiations

President Barack Obama wants a bipartisan deal on health reform, but trial lawyers don’t want him to deal on a top Republican priority: tort reform.

Trial lawyers defeated President George W. Bush’s push for medical liability reform and successfully lobbied to water down tort reform provisions in healthcare reform bills this Congress. But the battle is far from over.

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And in an odd twist, a longtime ally of the trial lawyers could be the one to resurrect the idea -- President Barack Obama.

“I would hope this would be an area we just don’t go,” said Linda Lipsen, vice president for public affairs at the American Association for Justice, the trade group for trial attorneys.

Lipsen said. “The last thing Congress should be doing is eliminating people’s rights when the real issue is safety in hospitals.”

Obama’s hints that he is willing to make a deal with Republicans on medical malpractice reform has got physicians and trial lawyers scratching their heads.

As recently as Tuesday, Obama floated the possibility of offering an olive branch to Republicans on malpractice reform as a gesture of bipartisanship. “I've said from the beginning of this debate I'd be willing to work on that,” Obama remarked during a press briefing.

Retiring Sen. Judd Gregg (R-N.H.) has recently indicated he is open to a healthcare compromise, stressing the need for malpractice reform to be included.

The White House announced on Friday that it will post a detailed health reform proposal online before the Feb. 25 bipartisan health summit, which Gregg was not invited to. It is unclear if that plan will be Obama’s own proposal or a merged version of the House and Senate-passed bills.

In an interview on Federal News Radio on Friday, Democratic strategist Bob Weiner said Obama should strike a deal on tort reform. He noted that Gail Wilensky, head of the Medicare and Medicaid agency in the first Bush administration, recently said Democrats could have gotten Republican votes if they had compromised on medical liability.

Weiner, who worked in the Clinton White House, said, “Why don’t we give a little on that and put some limit on [caps] and then get all of this national health insurance coverage for people and protect them with it? It’s not that much of a price. That’s part of the sausage-making that I think we could done that actually might have made a difference.”

Although Obama has repeatedly cited medical malpractice reform as a possible area of compromise with the GOP, he has not explained where he sees the middle ground and, indeed, has rejected Republicans’ top priority in this area: the hard-dollar caps on lawsuit awards in malpractice cases long sought by the physician and business lobbies.

But officials from pro- and anti-malpractice reform camps agree that, beyond the modest measures already in the healthcare reform bills that passed Congress and some demonstration projects under way at the Department of Health and Human Services (HHS), Obama has not give a clear indication of what sort of offer he is willing to make.

Asked whether they were aware of any new malpractice reform proposals from the Obama administration, these officials professed they were aware of none.

“I haven’t heard anything like that,” Lipsen said.

“Not that I know of,” said Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform, a proponent of limits on malpractice lawsuit awards.

“We haven’t seen any substantial proposal that supports his rhetoric,” said Kurt Bardella, a spokesman for Rep. Darrell Issa (R-Calif.), who has been a critic of the Obama administration’s stance on malpractice reform. “We have been waiting for his follow through and that’s what we have yet to see,” Bardella said.

Based on Obama’s oft-stated views on federal policy governing malpractice lawsuits, the trial lawyers likely have little to worry about. “I don’t think he’ll shock the world and come out and embrace caps,” Rickard said.

Obama indicated he could embrace malpractice proposals that “make my party a little bit uncomfortable.” Unlikely though it is that Obama would reverse positions on malpractice lawsuit caps or other proposals, it would not mark the first time he aggravated his liberal allies during the healthcare reform debate.

Despite campaigning against taxation of employer-sponsored health insurance, Obama put himself at odds with unions by endorsing a Senate-passed excise tax on high-cost insurance plans that organized labor and most House Democrats passed. The White House also struck a controversial deal to win the support of the pharmaceutical industry for healthcare reform, frustrating liberals who think Obama went too light on their long-time nemesis.

The House and Senate bills each contain provisions aiming to improve patient safety and offering grants to states that develop alternate ways to resolve disputes over medical errors. Proponents of broader malpractice reforms dismiss these proposals as inadequate while trial lawyers have rejected another possible compromise, the creation of special “health courts” that would hear cases and medical errors and malpractice.

Moving toward the middle on medical malpractice reform is no guarantee of winning GOP support, however. Any concession that Republicans would view as meaningful would prompt an outcry from Democratic lawmakers and the trial bar, a close ally of the party.

“I don’t see that as a credible place to go if the object is to pass the bill,” said Lipsen, noting that legislation to enact malpractice award caps could even not advance through the Republican-controlled Senate several times in the last decade.

Moreover, Republicans have stood so strongly opposed to the Democratic healthcare bills that even full capitulation on medical malpractice reform would not produce instant bipartisanship, Rickard noted. “There are so many issues that are in dispute in this bill,” she said, “that malpractice reform in and of itself isn’t going to overcome them.”

Bob Cusack contributed to this article