ObamaCare's Tort Deform

Source: http://www.investors.com/NewsAndAnalysis/Article.aspx?id=529359

04/05/2010

Health Overhaul: Despite the president's big talk about considering Republican ideas, tort reform was always a nonstarter. Now we find that the new health law will fill trial lawyers' pockets with added millions.

Here are the words that are music to the ears of ambulance-chasing attorneys from sea to shining sea: "or the care and services themselves, or both.''

As recently brought to light by the Daily Caller's Jon Ward, those words on the 466th page of the 2,704-page health reform monstrosity passed into law last month amount to a massive fiscal stimulus for some of the least needy, fattest cats in the country.

Section 2304 of the inappropriately named "Patient Protection Affordable Care Act" is entitled "Clarification of Definition of Medical Assistance." The section amends the Social Security Act and, by all appearances, fundamentally redefines Medicaid. The way that entitlement program for the poor works, managed by the states and funded by the states and the federal government under federal guidelines, will apparently be forever changed.

The requirement of the states in what they give Medicaid recipients apparently shifts from making payments to their doctors to ensuring the medical "care and services themselves." So in conditions of doctor shortages, states could be legally judged to have failed in their obligations if a Medicaid patient had been unable to get a doctor's visit in timely fashion.

As the Daily Caller quoted Louisiana health secretary Alan Levine in a memo to fellow state officials, "With the expanded definition, it leaves every state vulnerable to a new wave of lawsuits any time someone cannot access a service, even if that service is limited by virtue of the rates we pay."

Speculating that House Energy and Commerce Committee Chairman Henry Waxman, D-Calif., might be behind the provision, the Web-based publication noted Waxman's reputation as viewing trial lawyers as heroes for ordinary people. Ill-fated former senator and presidential candidate John Edwards, for instance, used medical malpractice suits to extract millions in excessive awards from targets ranging from obstetricians to even the American Red Cross.

In a campaign speech to the American Medical Association in Chicago in 2008, then-Sen. Barack Obama got booed when he told the crowd he wouldn't place limits on malpractice awards.

In that address he said, "I'm not advocating caps on malpractice awards — which I believe can be unfair to people who've been wrongfully harmed," and he suggested instead that "we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That's how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care."

During the campaign, the alternatives to suing doctors that the president expressed a willingness to consider included encouraging what might be called medical mea culpa/cross-your-fingers programs. The idea seemed to be that if doctors and hospitals could admit mistakes more often, patients' families might be appeased and not file lawsuits.

Now it seems that what ObamaCare is really going to do is encourage lawyers to appeal to poor people to sue their states instead. So competing with all those billboards for the next Mega Millions and Powerball jackpots will be ads from personal injury attorneys encouraging the down-and-out to cash in their golden tickets in courtrooms around the country.

It's one thing to sue a department store when an old lady breaks an ankle on the escalator, or a doctor who botches a surgery. Chances are that people will feel sorrier for the store owner or the doctor than they will for the big, impersonal state government when its bureaucrats can't get grandma the specialist she needs.

ObamaCare's anti-tort reform is about the last thing cash-strapped states need right now, but the thousands of John Edwards clones out there who give lots to Democratic politicians are sure to be sporting even bigger smiles.