Subject: DJP Update 12-28-2009 Two views on medical liability reform in particular and health system reform in general: AMA & Philip Howard
DJP Update 12-28-2009 Two views on medical liability reform in particular and health system reform in general: AMA & Philip Howard
AMA comments from AMA president:
http://online.wsj.com/article/SB20001424052748703478704574612541062948378.html?mod=djemITP
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Wall Street Journal December 28, 2009 Letter to the Editor
AMA Is Working With the Senate In regard to your Dec. 21 editorial “Change Nobody Believes In”: Make no mistake–the AMA is committed to permanent repeal of the broken Medicare physician payment formula that threatens access to care for seniors, military families and baby boomers. We are closer than ever to achieving that goal. On Saturday, Senate Majority Leader Harry Reid said that the Senate plans to work on the issue early in the new year, and the House has already passed legislation that repeals the current formula and updates payments to better reflect increasing medical practice costs. The two-month reprieve from the cuts will preserve access to care in the very short-term while the Senate works on permanent reform.
Our current health system is fragmented, and it’s not working for far too many patients and the physicians who dedicate their lives to patient care. Reform of our health system is needed, and the Senate bill includes key benefits that will increase choice and access while eliminating insurance company tactics like denying coverage for pre-existing conditions. It also authorizes grants to test alternative medical liability reforms that show promise in benefiting patients and reducing the impact of defensive medicine. The AMA supports passage of the amended Senate bill, and we’ll continue to work through the conference process to strengthen the bill.
J. James Rohack, M.D.
Chicago
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But Philip Howard, Chair of Common Good ( see: http://commongood.org/ ), best-selling author regarding reforming the legal system, and recipient of AMA Presidential Citation on March 29, 2004 during my AMA presidency. He offers a different view on medical liability and current health system reform bills. Howard considers the Senate insert on medical liability reform a “trojan horse” and the current proposed bills in Congress failures in addressing the problems. He says, in part, “The culture of American health care delivery can’t be fixed by piling 2,000 pages of new law on top of a mountain range of current entitlements, regulations, and protocols.”
http://correspondents.theatlantic.com/philip_howard/2009/12/how_to_build_a_trojan_horse.php
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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And more from Philip Howard in the New York Daily News on how to fix the health system and why the current bills in Congress won’t work:
http://www.nydailynews.com/opinions/2009/12/21/2009-12-21_the_missing_rx_responsibility.html
http://www.nydailynews.com/opinions/2009/12/21/2009-12-21_the_missing_rx_responsibility.html?page=1
EXCERPT:
Yet Congress refuses to alter the core structure that causes this waste. The culture of American health care delivery can’t be fixed by piling 2,000 pages of new law on top of a mountain range of current entitlements, regulations, and protocols. What’s missing in American health care is a basic principle essential to all human accomplishment: Individual responsibility, in this case responsibility for prudent use of health care resources. ……..
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Instilling individual responsibility requires more profound changes – but changes that, at least conceptually, are straightforward: (1) pay doctors based on overall results, not piecework reimbursement; (2) require patients who can afford it to pay a meaningful portion of their care; (3) minimize defensive medicine by creating a reliable system of medical justice; (4) reduce bureaucratic overhead and complexity (which also clears out the thicket in which fraud can hide).
Proponents argue that the pending bills work toward containing costs, including authorizing pilot projects for new reimbursement systems and a Medicare Advisory Board to recommend cost-saving measures. But without reorienting the delivery of care around the core principle of individual responsibility, any cost-saving proposals will ultimately die on a political vine that is nourished not by principle but by special interests.
White House chief of staff Rahm Emanuel recently dismissed critics of the proposed bills by saying that legislation is not made by “people sitting in the shade at theAspen Institute.” That may be the understatement of the year; these bills overflow with special interest giveaways.
Instead of containing costs, Congress is building support for the bills by institutionalizing the waste. Doctors get deals to lock in existing reimbursement formulas. Labor and consumer groups keep free health care, without any meaningful patient contribution. Trial lawyers veto malpractice reform.
Why do we think Congress will stand up to special interests tomorrow when it refuses to do so today?
It’s time to be realistic, not about the need to mollify special interests, but about the need for individual responsibility, by doctors, patients and everyone else. Responsibility must become the core element of American health care, just as it is for all other human activity.
Howard, a New York lawyer, is the author of “The Death of Common Sense” and chairman of Common Good.
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I encourage you to visit both sites where these articles by Philip Howard are located and post comments. I just posted one at the New York Daily News stating that one element left out in the personal responsibility article is the need to restore the right to privately contract without penalty.
DJP Reflections: Remember that one vote change in the Senate and perhaps 3 vote changes in the House will stop these bills with disaster in the details. Then effective reform can be debated and a solution won’t require over 2000 pages. Time is of the essence. What will you do to make a difference? Education, discussion, and debate on the real facts and not funny math can make a difference.
Again, Happy New Year. Hug a loved one. Get your blood pressure checked. That is a silent killer. Don’t assume you are free of hidden correctable problems.
Donald
P.S. Stop by http://twitter.com/djpNEWS and sign up for DJPNEWS to get tweet alerts that may not make it into DJP Updates.
Donald J. Palmisano, MD, JD
Intrepid Resources® / The Medical Risk Manager Company
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