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Obama's talk of medical malpractice reform surprises both sides

His use of the term 'frivolous lawsuits' in his State of the Union address upsets patients' rights advocates.

January 28, 2011|By David G. Savage, Washington Bureau

Reporting from Washington — President Obama took both Republicans and normally supportive patients' rights advocates by surprise this week when he voiced support for a national limit on medical malpractice lawsuits.

"I'm willing to look at other ideas to bring down costs" besides repealing his healthcare overhaul, Obama said in his State of the Union address, including "medical malpractice reform to rein in frivolous lawsuits."

The president's words breathed new life into the often discussed but never enacted Republican initiative. Last week, House Republicans held a hearing to decry the cost of medical malpractice lawsuits, which they blame for rising healthcare costs. They introduced a bill to set a $250,000 limit on damages for pain and suffering caused by "any healthcare goods or services or any medical product."

Obama's comment upset supporters who had specifically asked the White House last year to avoid the word "frivolous" when talking about suits by injured patients.

"We said to the White House staff, 'Please do not use words like "frivolous lawsuits," because these people have suffered devastating injuries,' " said Joanne Doroshow, executive director of the Center for Justice & Democracy in New York.

Last year, she brought to the White House several families whose children had suffered brain damage or crippling injuries because of medical mistakes. Under California law, they could receive no more than $250,000 for a lifetime of pain and suffering. "To have the president use that term was very troubling," she said.

The House proposal is modeled on laws in California and Texas, but it would go considerably further by limiting damages for injuries caused by drugs or medical devices.

Medical and business groups endorsed the House bill when it was introduced, and they welcomed Obama's comments. They say that malpractice lawsuits, and the threat of lawsuits, help drive up the cost of healthcare.

But Obama, House Republicans and the Democratic-controlled Senate remain far apart.

White House aides say Obama is opposed to setting caps on damages for victims of medical malpractice. They said the president had expressed interest in other changes, such as setting up special "health courts" or arbitration systems that could resolve claims in a fair and efficient way.

Although the bill stands a good chance of passing in the GOP-controlled House, it faces stiff opposition in the Senate.

California adopted its cap on pain-and-suffering damages in 1975 at a time when premiums for malpractice insurance were rising rapidly. Its monetary cap has not been raised since then.

"We believe it has worked. It has kept malpractice rates at an affordable level and allowed physicians to maintain a practice," said Dustin Corcoran, chief executive of the California Medical Assn., which represents doctors.

Some consumer groups in California say the state's regulation of insurance rates had more to with holding down premiums than the cap on damages. But at least 35 states have adopted some limits on damages for medical malpractice claims, although many of them are much higher than $250,000.

And these damage caps continue to face fierce opposition. Last year, state courts in Illinois and Georgia struck down the limits paid to victims of malpractice on grounds that they violated the states' constitutions.

Consumer advocates and trial lawyers argue that the caps are wrongheaded because they have the biggest effect on the worst cases of medical error. These are cases in which jurors are inclined to award large damages, not just for medical expenses and lost wages, but for the victim's pain and suffering.

The president of the American Assn. for Justice, which represents personal-injury lawyers, said Obama had chosen the wrong target. "As many as 98,000 people die every year from preventable medical errors" in the U.S., said C. Gibson Vance, a plaintiff lawyer from Alabama. The president "should direct his focus toward tackling this startling figure, not promoting efforts that could eliminate the legal rights of patients," he said.

david.savage@latimes.com

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