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Health care reform law lacks med mal changes

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Just about everybody agrees that the battle over health care reform is far from over.

Republicans already are promising to make every effort to repeal the Patient Protection and Affordable Care Act. Of course, corralling enough votes to override a certain presidential veto—assuming Republicans gain control of Congress as a result of November's elections and that the repeal effort occurs while President Barack Obama is still in office—would be a monumental task.

The new health care reform law is extremely complex. There's no reason to believe that even the most obsessed policy wonk in Washington understands everything that it contains, which assures there will be continuing disagreement over what it does and doesn't do.

But one thing is certain about what it doesn't contain. That missing piece is meaningful medical malpractice liability reform of any kind.

The new law authorizes the secretary of Health and Human Services to award five-year demonstration grants to states to develop, implement and evaluate alternative medical liability reform initiatives, such as health courts and early offer programs, beginning in 2011.

The law also extends medical liability protections under the Federal Tort Claims Act to officers, governing board members, employees and contractors of free clinics.

Maybe an incurable optimist would say, “So far, so good,” but given that these provisions don't go very far at all, there's little to cheer about here.

Health care reform is promoted as a means to achieve two goals. One goal is to extend coverage to more uninsured people. The other goal is to control costs.

Given physicians' fear that being sued drives up costs, one is hard pressed to see how this second goal can be achieved without some change to the medical malpractice liability system.

That's because doctors, who fear being second-guessed in court, practice more defensive medicine than they otherwise would. They order tests that aren't medically necessary but cost real dollars. They do so not because there's a firestorm of malpractice awards, but because the awards aren't predictable and sometimes don't seem to line up with the harm caused.

No one expected the new health reform law to contain sweeping medical malpractice liability changes. After all, the law is the product of a single political party and that party has, by and large, been skeptical of tort reform. Truly revolutionary legal ideas weren't going to find a home there.

But more modest ideas, such as creating some sort of legal mechanism to help assure that awards for noneconomic damages aren't grossly disproportionate to underlying economic damages, should have been considered. Unfortunately, even such a modest reform didn't make it into the law.

The aim of such a reform isn't to deny injured people access to courts, nor is it to demonize the plaintiffs bar. People suffer real injuries as a result of real malpractice, and they deserve a day in court and effective representation.

But if cost control is the integral component of health care reform that supporters of the new law insist it is, medical malpractice reform has to be part of the solution.

After all, with government assuming more and more control over health care, the taxpayers ultimately pay the bill—including at least some of the bill for malpractice awards—directly or indirectly.

It's simply a matter of fairness that every effort be made to assure that the taxpayers don't end up paying a penny more than they must.

Medical malpractice liability reform, even if relatively modest, has to be part of that effort if it is to succeed.