The mad dash to jam through a government takeover of America’s health-care system has led to some pretty blatant and noxious payoffs, even by congressional standards.
At least two Senators exchanged their votes for immunity from additional Medicaid costs — but just for their own states. Another yet-to-be-identified senator is getting $100 million for a new hospital in his state.
But few groups make out better under the congressional leadership’s health-care plans than personal-injury trial lawyers.
In reading the health-care bill approved by the House of Representatives and Harry Reid’s bill pending in the Senate, I find (so far) 26 new opportunities for plaintiff lawyers to sue doctors for malpractice.
At least 26 sections in the House bill and 21 sections in Senator Reid’s bill require that doctors adhere to certain standards of care in patient care, payment initiatives, payment determinations, and wellness-prevention programs that do not now exist in law. Each of these provisions could be used by a plaintiff’s lawyer to assert that the doctor failed to comply with “best practices” guidelines and become the basis for a medical-malpractice lawsuit.
What frustrates physicians and state policymakers alike is that none of these proposed guidelines actually enhance patient care or safety. Instead, in inventing all these new standards of care — relating to such things as effectiveness research, accountability provisions, medical training standards, research and data recorded by pilot programs, task force and demonstration projects, qualification standards for medical personnel, and quality standards (many with enhanced civil penalties) — Congress is creating a regulatory nightmare for physicians and hospitals.
If this bill becomes law, hardly a day will go by when a physician will meet all of the required administrative and regulatory processes proposed by Congress in these bills. Physicians across the country will be exposed to many frivolous liability lawsuits based not on how they treated their patients but instead on whether they complied with certain government standards.
Contrast this with the approach to lawsuit reform taken by the state of Texas. Six years ago, Texas voters slammed the door on frivolous lawsuits by placing Proposition 12 in the state constitution. Since then, 18,000 doctors have moved to the state, including thousands of uniquely qualified specialists and primary-care physicians. Today, 99.7 percent of all Texans live within 20 miles of a doctor, despite the fact that Texas has the most rural population of any state.
Commonsense lawsuit reforms also jumpstarted $10 billion in capital expansions of hospital and clinic infrastructure, including $3 billion to Texas Children’s Hospital. CHRISTUS Health was able to increase its already huge charity-care commitment by $100 million per year.
In short, commonsense tort reform has resulted in a massive increase in Texans’ access to health care: more doctors, hospitals, clinics, charity care, labs, and diagnostic equipment.
But the commonsense reforms adopted in Texas may well be held by a federal judge to have been implicitly preempted by the 2,000 pages of technical legalese the House and Senate bills have become. The courts have called this “conflict preemption”, when it becomes impossible to reconcile both state and federal legislative intent. The federal courts have held that state law becomes a nullity when it interposes an obstacle to congressional objectives.
When this preemption problem was discussed with the drafters of the House legislation, Representative Dingell (D., Mich.) procured this amendment to the bill: