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Memo Reveals Obama Thinking on Malpractice

MedPageToday, 2012

DeParle and Sher outlined for the president five medical liability reform options, including a safe harbor approach, early disclosure of medical errors and mediation, pre-trial administrative screening panels, alternative dispute resolution, and health courts.
DeParle and Sher told Obama that the AMA had indicated that it favored early disclosure of medical errors and mediation.
Under that approach, doctors or hospitals would disclose an adverse event, apologize to the patient or the patient's family, and then adhere to a protocol that might include mediation to reach a settlement.
If the parties failed to reach an agreement, the patient could still sue, but couldn't use the doctor's apology as an admission of guilt.
(This option is used today at a number of medical centers, including the University of Michigan Hospital System and Stanford Medical Center).
The aides asked Obama which of the five options he'd like them to pursue, and he put a check next to early disclosure and penned a handwritten message that said, "Obviously we shouldn't do anything that weighs down the overall effort -- but if this helps the AMA stay on board, we should explore it."
The AMA ended up being an important ally in the effort to pass healthcare reform, despite the fact that the Obama administration never publicly endorsed the early disclosure approach or any broad malpractice reform.
"It is therefore debatable whether and to what extent any one proposal is likely to change clinical practice, lower malpractice premiums, reduce litigation costs, and be viewed as transformational," they wrote, adding that for that reason, they recommended state-level malpractice pilot programs before implementing any of the reforms nationwide.
That is exactly what the Obama Administration ended up doing when it awarded $25 million in grants for programs to test for medical liability cases, much to the dismay of those who wanted Obama to back more comprehensive malpractice reform.
One option that was left off the memo was putting economic caps on the damages awarded in a medical malpractice lawsuit.
DeParle and Sher also addressed the political environment surrounding legislation on medical liability reform, writing, "As in the past, there continues to be an appetite for malpractice reform among most Republicans and opposition among most Democrats in Congress."