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."