President Barack Obama’s push for medical malpractice reforms is getting mixed reviews in Colorado, a state with some of the strictest caps on malpractice awards in the nation.
Obama’s call for malpractice lawsuit reform in his health care speech Wednesday night was music to the ears of the Colorado Medical Society, which represents thousands of the state’s physicians.
“What he is advocating is exactly what we would like to see the federal government do,” said Edie Sonn, a spokeswoman for the doctors’ organization.
Attorneys for injured patients, though, were not impressed.
“I’m disappointed in President Obama, but we should be guarded because he was very vague,” said Dan Lipman, a Denver lawyer who handles medical malpractice cases and who sits on the board of the Colorado Trial Lawyers Association. “Before we jump to conclusions, we should see what he really means.”
Tough to measure
Doctors have argued that medical malpractice suits drive up the cost of health care by making them practice “defensive medicine,” ordering more tests and procedures to reinforce a diagnosis and treatment.
Multiple federal studies have found that costs of malpractice represent only about 2 percent of total health care costs. What is harder to measure are the costs of defensive medicine, which critics say represent as much as 10 percent of total health care costs.
Obama, who has made overtures to doctors before about reforming the medical liability system, said Wednesday that changing the system wouldn’t be “a silver bullet.”
“But I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs,” Obama said. “So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.
“I know that the Bush administration considered authorizing demonstration projects in individual states to test these issues. It’s a good idea, and I am directing my secretary of health and human services to move forward on this initiative today.”
Under Colorado law, awards for noneconomic — or “pain and suffering” — damages in medical malpractice lawsuits are capped at $300,000. Total damages for medical malpractice are capped at $1 million, though a judge can approve a higher award.
Trial lawyers complain that the limit for noneconomic damages is not inflation-adjusted each year as in some states, and the cap has not been increased in years. Attempts in the legislature to allow for higher damages have failed the past two years.
It’s difficult to say what effect Colorado’s medical malpractice caps have on health care costs in the state. According to information from the Kaiser Family Foundation, Colorado’s average malpractice claim payment is 16.8 percent below the national average, and the state’s per capita health care expenditures are 10.7 percent below the national average.
But factors ranging from the average age of a state’s residents to their lifestyles (Coloradans on average are thinner than other Americans) to their income levels all play a role in health care costs.
Lipman said he disagreed with Obama’s statements about doctors practicing “defensive medicine,” saying that in many cases ordering more tests or procedures to buttress a diagnosis is “appropriate medicine.”
Sonn said the current system of medical liability leaves many injured patients uncompensated because their injuries are not severe enough for lawyers, who work on contingency, to want to take their cases. Meanwhile, accountability for errors is avoided too, she said.
Several systems possible
Obama has previously indicated opposition to instituting national caps on malpractice awards. But his broad statements about reform could open the door for multiple state-level experiments.
Some of the state-level pilot projects could include systems that encourage early out-of-court settlements and disclosure and apologies from doctors. They could also include Swedish-style “health courts,” in which a specially trained judge or panel of experts hears cases. Or they could include a New Zealand-style no-fault medical malpractice system, in which patients are simply compensated for injuries, not unlike how worker’s compensation courts work in the U.S.
None of those ideas sounds good to Lipman, who added that health courts or a new no-fault system would set up a “bureaucratic monster.” He also said the current system of competing facts and expert witnesses is frequently the only way to find out exactly how a patient was injured.
“You don’t get to the truth without having an adversarial system,” Lipman said.
