Forgive me if I seem skeptical of President Obama’s assertion last evening in his State of the Union address when he said that he was “willing to look at other ideas to bring down [health care] costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.”
The president has in the past made clear his opposition to such reform, saying that he did not “believe malpractice reform is a silver bullet.” This despite the fact that abusive tort litigation against medical providers greatly increases medical malpractice-insurance costs, raising the costs of health care and driving providers out of business. Such litigation also forces almost all doctors to practice “defensive medicine” – ordering unnecessary tests and treatments to avoid potential lawsuits. This literally adds hundreds of billions of dollars to the cost of health care every year.
In 2009 when President Obama addressed Congress on health care, he made a very dubious offer of future medical malpractice pilot projects and supposedly ordered his Secretary of Health and Human Service, Kathleen Sebelius, to move forward with “authorizing demonstration projects in individual states to test these issues.” Apparently, Sebelius gave out minimal grants for a small number of ineffectual projects in 2010, none of which seem to deal with the serious issues of abusive litigation and defensive medicine, such as one in Washington state that seeks to “enhance the culture of health care communication.” Of course, that should come as no surprise given that Secretary Sebelius was the head of the Kansas Trial Lawyers Association for eight years, which like other tort lawyer organizations, opposes all forms of effective medical malpractice reform like damage caps that might impinge on their profligate profiteering.
The Obamacare law, which the president considers to be the hallmark achievement of his administration, did not have a single provision in its thousands of pages making any needed changes in our medical malpractice system. It does have one section that provides incentive payments to states that provide “an alternative medical liability law” that prompts “fair resolution” of disputes, although any “alternative” must allow patients to opt out and pursue litigation “at any time.” But the Obamacare law also specifically dissuades states from implementing successful, proven reforms since no such incentive will be paid to any states that limit “attorneys’ fees or impose caps on damages.”
This is also no surprise, since tort lawyers are one of the biggest sources of campaign funding for Democrats. In a very candid moment at a town meeting, Howard Dean admitted that the reason there was nothing in Obamacare on tort reform was “because the people who wrote it did not want to take on the trial lawyers…And that’s the plain and simple truth.”
But the president’s statements about health care illustrate a more basic problem. He expressed no concern whatsoever about the constitutionality of federal legislation that nationalizes our health care system, even though the individual mandate has been declared unconstitutional by a court ruling in Virginia and a majority of the states are opposing the law in another lawsuit in Florida. Further, President Obama’s statements about medical malpractice reform show that he has learned nothing from the debate over his health care law and the serious constitutional issues it raises.
The president’s statement implies that the federal government has the ability to tell states what kind of damages can be paid in tort cases, which is an issue well within the sovereign control of state governments, not Congress or the Executive Branch. It is certainly true that Congress could condition some funding of federal programs like Medicaid or SCHIP on states implementing medical malpractice reform for medical providers in those federal programs. But Congress does not have the constitutional authority to tell states how their legal tort system should be run in all medical liability cases.
Like so much of what the president said last night, his actions over the past two years have been completely different from what he is suddenly saying now. And in Washington, actions speak louder than words.