By Alexander Bolton - 02/27/10 11:00 AM EST
There is a growing sense among Democratic lawmakers that an effort should be made to include GOP proposals in healthcare reform legislation in the wake of Thursday’s summit.
This has given an opening to centrist Democrats who want to take on trial lawyers by reforming medical malpractice law. These centrists say that Republican policy makers have made a strong case for lawsuit reform and it would be in the best interests of healthcare reform to meet them part-way.
But while some liberal activists say Democrats should ram legislation through the Senate using special budget rules that require only a simple majority vote, Democratic leaders have taken a different view.
Speaker Nancy Pelosi (D-Calif.) said Friday that Obama “has a vision and he wants to build consensus.”
Pelosi noted that Democrats spent weeks negotiating with Republicans on the Senate Finance Committee to reach a bipartisan agreement, adding that Obama “still has the door open to that.”
“Hopefully, we can find some initiatives to incorporate into the bill,” she said.
Democrats acknowledge there is little chance that any Republicans will vote for the controversial health bill. But some argue that including GOP proposals will give the legislation more “bipartisan appeal” and make it easier for centrist Democrats to support.
Rep. Rob Andrews (D-N.J.), who attended the White House summit, said negotiators should reconsider Republican proposals.
“I don’t think it's time to forget about the Republicans,” Andrews said during an interview on C-SPAN. “I think it is time to take all of the good ideas that came out of yesterday, whether they are from Republicans or Democrats, put them in a bill, put the bills out on the floor and take a vote.”
“I heard some ideas both sides could support,” Andrews said, citing proposals “to stop nuisance lawsuits.”
Andrews said Democrats should also review Republican proposals to allow insurance companies to sell policies across state lines and allow small businesses and individuals form pools to buy health insurance.
Several Democrats have pushed a plan to set up special health courts run by judges with medical expertise to replace jury trials to resolve malpractice lawsuits.
“The bipartisan trade-off in a viable healthcare bill is obvious: Combine universal coverage with malpractice tort reform in healthcare,” former Democratic Sen. Bill Bradley wrote in an op-ed for the New York Times last year.
“Malpractice tort reform can be something as commonsensical as the establishment of medical courts — similar to bankruptcy or admiralty courts — with special judges to make determinations in cases brought by parties claiming injury,” wrote Bradley, who argued that such a reform would lower healthcare costs and reduce errors.
David Kendall, senior fellow for health and fiscal policy at Third Way, a centrist Democratic think tank, supports the proposal.
“What we need to do is change the way courts handle malpractice cases so patients are treated fairly and efficiently and doctors have a clear signal as to what constitutes malpractice,” Kendall said.
He argues that medical lawsuits scare doctors into practicing “defensive” medicine because they do not provide doctors with clear guidelines for malpractice. A reason for this, he said, is that courts are often arbitrary in their findings of malpractice.
“There are multiple standards for malpractice and it’s confusing,” he said.
Several Democrats in Congress have bought into this line of thinking.
Sen. Tom Carper (D-Del.), a member of the Finance Committee, supports giving states the option to set up healthcare courts, according to a Democratic aide.
Rep. Jim Cooper (D-Tenn.) introduced legislation establishing health courts during the 110th Congress.
“We’ve been supportive of that,” said an aide.
In closed-door healthcare negotiations last year, Obama argued that reducing malpractice lawsuits would reduce costs and should be part of the broad reform effort, according to the New York Times.
Obama reiterated his support earlier this month.
“I’ve said from the beginning of this debate I’d be willing to work on that,” Obama said during a press briefing.
But trial lawyers have pushed back hard.
Ray De Lorenzi, spokesman for the American Association for Justice, panned the idea of setting up special health courts.
“Health courts would involve the creation of an outrageously expensive new bureaucracy to handle the very few medial negligence claims that exist today,” said De Lorenzi. “Health courts leave the original problem intact. It will do nothing to eliminate the 98,000 people who die every year from preventable medical errors.
“Fixing the errors, not creating new bureaucracies is the right solution,” he added.
De Lorenzi pointed to an analysis from the Congressional Budget Office concluding that putting a cap on punitive damages, changing liability laws and shortening statutes of limitation would save only $11 billion in healthcare spending per year.
Kendall, however, argues that health courts would save many times more money because they would establish clear malpractice guidelines for doctors. He said capping damages would not provide enough guidance to significantly reduce over spending on defensive medicine.
Roger Hickey, co-director of Campaign for America’s Future, a liberal advocacy group, said the Senate healthcare bill has already included significant Republican ideas.
He said the Senate bill already includes versions of the proposals to allow insurance companies to sell across state lines and small businesses and individuals to form buying pools.
“That’s the whole idea behind regional exchanges,” said Hickey, who argued those groups would allow individuals to pool purchasing power. “In many ways this [Senate] bill draws on a lot of conservative ideas. I’m not happy with all of them.”
The Senate bill would also authorize the secretary of Health and Human Services to award demonstration grants to states for “the development, implementation, and evaluation of alternatives to current tort litigation for resolving disputes over injuries” caused by healthcare providers.
Republicans have panned the Senate proposal as too weak to have much effect.