Democrats Avoid Tort Reform in Healthcare Debate

The issues many on the left won't touch are defensive medicine and tort reform.

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Healthcare town hall protesters bring it up constantly. So do many doctors. Democrats, for the most part, refuse to go near it. The issue is the cost of "defensive medicine"—basically, doctors ordering extra (and arguably unnecessary) tests to protect themselves from costly lawsuits. Data on the exact size of the problem are spotty, but it's big. A recent PricewaterhouseCoopers study estimated that these practices are responsible for up to 10 percent of the country's annual healthcare spending, or some $210 billion.

[See photos of town hall protests.]

President Obama has talked about cutting "wasted" healthcare spending, and $210 billion would help the cause. He suggested as much in a speech to the American Medical Association in June. "I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable," he said. "That's a real issue."

Yet, so far, save for one proposed amendment, there's been little support from Democrats on the topic. The House's healthcare bill won the AMA's support in July, but the group expressed concern over a glaring omission. "Clearly, that bill did not address the unnecessary costs of defensive medicine," AMA President James Rohack said in an earlier interview.

It's possible the issue will get play when Congress comes back from its recess, but even advocates say that's unlikely. "Do I think something's going to happen?" says Troy Tippett, president of the American Association of Neurological Surgeons. "I would be very surprised if it does."

That's partly because of where the political parties stand on related legal matters. Some doctors, especially those in risky specialties, are asking for national caps on how much victims of medical accidents can receive in damages. This is known as tort reform. Supporters say limits on big payouts would ease doctors' worries about costly lawsuits and curb unnecessary tests.

But tort reform is viciously partisan and heavily lobbied. In his AMA speech, Obama argued that "caps on malpractice awards . . . can be unfair to people who've been harmfully wronged." Many Democrats agree, as do the plaintiffs' lawyers who've generously given to Democratic campaigns, including President Obama's. Republicans tend to side with businesses in legal suits and therefore get much less support from the plaintiffs' lawyers.

There's also debate over what these caps achieve. On one hand, there's evidence at the state level showing that they can help resolve doctor shortages. "Southern Illinois was an area where it was well known if you were in a car accident, there was no neurosurgeon in the region to take care of you," says Tiger Joyce, president of the American Tort Reform Association. Thanks to tort reform there, he says, those shortages have eased. But studies also have shown that in many states, tougher tort laws haven't stemmed rising healthcare costs.

So far, tort reform hasn't gotten very far. As Maryland Sen. Ben Cardin recently told a town hall that "tort reform is clearly an issue that may be in the bill." With the angry attendees who wanted a straight answer, that didn't go over too well.