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Dent: Critical Opportunity Squandered

Over the past year, as Congress debated how best to reform our health care system, much of the focus was placed on the issue of access — ensuring that all Americans have health insurance. However, access to insurance does not guarantee access to quality care. The new health care law squandered a critical opportunity to strengthen our health care system by addressing the root causes of unsustainable increases in health care costs.

The medical justice system is a major driver of cost in our health care system. Doctors practice defensive medicine, ordering costly tests and treatments that are not truly needed but prescribed to ward off frivolous lawsuits. This litigious environment has created a culture in which doctors are forced to protect themselves by overprescribing and overutilizing rather than focusing on providing the highest quality care. Defensive medicine doesn’t mean better care; it just means more expensive care.

The practice of defensive medicine costs the United States more than $100 billion per year. Some studies estimate the cost is as high as $151 billion to $210 billion annually. In my home state of Pennsylvania, not only is the medical liability environment increasing costs for patients, it is driving qualified doctors out of the commonwealth. Philadelphia in particular has long had a notorious reputation of providing friendly judicial venues to trial lawyers.

Ultimately, this becomes an access issue. Many families in Pennsylvania have seen the trauma center in their community close or have faced the uncertainty of not knowing who will deliver their baby when their doctor stopped practicing obstetrics.

In October, the Congressional Budget Office released an analysis indicating that medical liability reforms would save the government $54 billion over 10 years and cut national health care spending by 0.5 percent per year. These savings would be the result of direct savings from lower premiums for medical liability insurance and also indirect savings from reduced utilization of health care services.

Common-sense medical liability reforms that reduce the practice of defensive medicine will lower the cost of care and reshape the culture of medicine by allowing doctors to maintain their focus on providing high-quality, individualized care.

Regrettably, despite many constructive proposals that were discussed at every level of the process — in bipartisan meetings, during committee markups and at the Rules Committee prior to both House votes — the final health care law only gives lip service to the medical liability crisis facing our nation. This was politics at its worst — protecting trial lawyers at the expense of patients.

The new health care law clearly presents our nation with significant challenges. The CBO has concluded the law will increase the federal budgetary commitment to health care by nearly $400 billion over the next 10 years. CBO Director Doug Elmendorf has noted, “Rising health costs will put tremendous pressure on the federal budget during the next few decades and beyond. In CBO’s judgment, the health legislation enacted earlier this year does not substantially diminish that pressure.” Moreover, a report by the Office of the Actuary at the Centers for Medicare & Medicaid cautioned the increased demand for services will be difficult to meet and may jeopardize access to care.

Moving forward, Congress must enact meaningful reforms that will reduce costs, improve the quality of care and preserve access. Comprehensive medical liability reform is a good place to start.

In November, I introduced H.R. 4039, the Ending Defensive Medicine and Encouraging Innovative Reforms Act of 2009, which would enact nationwide reforms aimed at addressing defensive medicine and encourage states to adopt effective alternative medical liability laws that would reduce the number of health care lawsuits initiated, reduce the average amount of time taken to resolve lawsuits and reduce the cost of malpractice insurance. Specifically, the bill would stabilize compensation for injured patients, hold parties responsible for their degree of fault, ensure that meritorious claims are swiftly resolved, encourage compliance with accepted clinical practice guidelines and guarantee that medical care is available to those who need it the most by providing protections to safety-net providers.

I have also advocated for a targeted bipartisan bill — H.R. 1998, the Health Care Safety Net Enhancement Act — to address the crisis in access to emergency care that has resulted from the disruptive medical liability environment. This legislation would reverse the growing shortage of physicians and specialists willing to work in emergency departments as hospital staff or as on-call providers by extending medical liability protection to those who provide emergency services (under the federal Emergency Medical Treatment and Labor Act). Particularly given the increased demand facing our medical providers as a result of the new law, it is even more important that emergency medical care be available when and where it is needed.

When passing health care legislation earlier this year, the majority missed an obvious opportunity to combat escalating health care costs by failing to address the practice of defensive medicine. Medical liability reform should have been a central component of the health care legislation considered by Congress earlier this year. Unfortunately, politics prevailed over policy. Sadly, the crisis of cost and the threat of denied access to care have only been heightened by the new law. We must work swiftly to enact medical liability reforms that begin to bend the cost curve in the right direction and reverse the culture of defensive medicine.

Rep. Charlie Dent is a Pennsylvania Republican.

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