How to Build a Trojan Horse

The Senate health care bill does nothing to address the unreliable malpractice system.  Actually, it's designed to prevent fixing the malpractice system.  How the bill does this is painfully apparent to me--because I put together the first draft of a malpractice amendment at the request of a Democratic policy expert who deals with members of Congress on these issues.  Here's how the reform proposal got transformed into a bulwark for trial lawyers to bar possible reform.  

--Ignore defensive medicine.  The bill contains vague language about "mak[ing] the medical liability system more reliable," but, in listing its goals, says nothing about stemming the waste of defensive medicine.  Indeed, the phrase "defensive medicine" never appears in the bill.

--Make any pilot toothless.  The bill supposedly encourages pilot programs to improve reliability by "increasing the availability of prompt and fair resolution of disputes."  Indeed, only when justice is reliable will health care providers focus on delivering the best care rather than making choices defensively.  But the bill then removes the potential benefits of reliability by providing that any patient can "opt out" of any pilot project "at any time."  Lest anyone miss the point, the bill explicitly preserves every claimant's ability to take the case to a jury trial, even after participating in the pilot.  Instead of providing a reliable new system, the bill essentially gives claimants a choice of "heads I win, tails you lose."   

--Remove any incentives for reform.  The cost of unreliable justice is so great--resulting, according to some estimates, in $200 billion in unnecessary defensive medicine annually--that most serious proposals for overhaul (including the bipartisan proposal by Senators Wyden and Bennett) have provided incentive payments for states that succeed in stemming the waste.  The Senate bill omits any such incentives.  The preamble of the Senate proposal makes it appear that the purpose is reform, but then, like a Trojan horse, it kills any possibility of achieving that goal.  The cynicism here is breathtaking. 

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Philip K. Howard is a lawyer and author, and the chair of Common Good. He most recent book is The Rule of Nobody.

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