Real health care re­form?

The Denver Post - - PERSPECTIVE - By Mario Ni­co­lais

In the dog days of sum­mer, the United States Se­nate con­tin­ues to mud­dle through health care re­form. The current pro­posal seems bogged down un­der the weight of uni­ver­sal Demo­cratic op­po­si­tion com­bined with se­ri­ous con­cerns of Repub­li­cans from both ends of the party spec­trum.

Maybe it’s time to take a step back and re­fo­cus. As a lawyer work­ing in the health care in­dus­try, I be­lieve tort re­form would of­fer a good al­ter­na­tive.

All sides agree that the current health care sys­tem needs re­form. It needs fixes. Med­i­cal costs have sky­rock­eted and are ac­cel­er­at­ing. The health care in­dus­try ac­counts for more than a sixth of the U.S. econ­omy, grow­ing to a fifth in the next few years. And that is be­fore baby boomers start hit­ting ages when cat­a­strophic health care costs peak.

Law­suits drive a sig­nif­i­cant por­tion of that tra­jec­tory. First there are the ob­vi­ous costs of lit­i­ga­tion. Pay­ing for de­fense coun­sel, pay­ing for dis­cov­ery, hir­ing ex­perts, pay­ing dam­ages or set­tle­ments. The list goes on and on. If you’ve ever got­ten sticker shock from a lit­i­ga­tor’s bill, you un­der­stand. Even if an in­sur­ance com­pany picks up the tab, the pre­mi­ums for health care providers jump in con­junc­tion.

The se­cond, and ar­guably big­ger is­sue, re­volves around the prac­tice of de­fen­sive medicine. Risk-averse doc­tors, or the hospi­tals they work in, or­der tests and pro­ce­dures that may have lit­tle value to their pa­tients in or­der to avoid a later ac­cu­sa­tion of “miss­ing” some­thing. Even if a costly exam may only help one in ten thou­sand pa­tients, it’s the one who might bring a costly law­suit if the exam isn’t ordered. Each ad­di­tional test or pro­ce­dure adds to the pa­tient bill, but be­cause some­one else — an in­sur­ance com­pany — is pay­ing, pa­tients don’t ob­ject. To the con­trary, most peo­ple want to leave no stone left un­turned.

Of course, in­sur­ance com­pa­nies don’t just eat the cost in­creases. They pass it along to pa­tients via in­creased pre­mi­ums. Which brings us back to the fight in the Se­nate — the pre­cip­i­tous in­creases in pre­mi­ums.

A mul­ti­tude of pro­vi­sions have been pro­posed: caps on dam­ages, short­ened statutes of lim­i­ta­tions, and safe har­bor pro­vi­sions shield­ing physi­cians from li­a­bil­ity are among the most com­mon. The so­lu­tions aren’t the­o­ret­i­cal, ei­ther. The U.S. House of Rep­re­sen­ta­tives re­cently passed two bills im­ple­ment­ing these changes: the Amer­i­can Health Care Re­form Act in May and the Pro­tect­ing Ac­cess to Care Act only a cou­ple weeks ago. The for­mer cre­ates a safe har­bor from med­i­cal li­a­bil­ity claims when med­i­cal providers im­ple­ment and fol­low pre­de­fined care guide­lines. It avoids the bat­tery of ex­cess med­i­cal care by set­ting pa­ram­e­ters where med­i­cal care isn’t trumped by le­gal con­cern. The lat­ter caps noneco­nomic dam­ages, ef­fec­tively pay­ments for loss of qual­ity of life, to $250,000.

I can’t say that the bills are per­fect, but they are the types of pro­pos­als that can ac­tu­ally ad­dress the very real night­mare of rapid health care cost in­fla­tion. It is worth ro­bust de­bate and com­pro­mise. It’s also a much bet­ter use of the Se­nate’s time than the smoke-and-mir­ror par­lor game it is cur­rently play­ing over re­peal and re­place of Oba­macare.

The con­cepts aren’t with­out de­trac­tors. Very pow­er­ful trial lawyer or­ga­ni­za­tions op­pose the re­forms ve­he­mently. Ev­ery lim­i­ta­tion on po­ten­tial li­a­bil­ity re­cov­er­ies rep­re­sents dol­lars out of their pock­ets. Con­se­quently, they have been able to beat back mean­ing­ful change.

Our health care sys­tem faces a crit­i­cal junc­ture and the mem­bers of the U.S. Se­nate have re­treated to in­tractable po­lit­i­cal cor­ners. Chang­ing the con­ver­sa­tion to health care tort re­form might be the best choice to bring them back to the ta­ble. With med­i­cal costs con­tin­u­ing to spi­ral up, that is ex­actly where we need them.

Mario Ni­co­lais is an at­tor­ney and writes col­umns on law en­force­ment, the le­gal sys­tem, and pub­lic pol­icy. Fol­low him @Mar­i­on­i­co­laiesq

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