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Nadler: Malpractice Suits Are Not Frivolous

For my entire adult life, I have fought for the right of Americans to have safe, affordable and accessible health care. Our new health care law puts us squarely on the path to realizing those goals.

The law extends coverage to 32 million Americans, ends discrimination against people with pre-existing

conditions and the cruel practice of rescission, and prohibits annual and lifetime caps on care. It strengthens and enhances the Medicare program for our seniors, gives important tax credits to small businesses providing coverage to their employees, allows parents to extend coverage to their kids up to age 26 and much, much more. The Congressional Budget Office tells us that the health care law will accomplish all of this while reducing the deficit by $138 billion in the first 10 years and by $1.2 trillion in the following 10 years.

But there are still a number of elements of health insurance reform that we have yet to resolve. One of those is the issue of medical malpractice.

Throughout the debate over reform, opponents of the bill often argued that medical malpractice reform was the panacea for our national health care crisis. While doctors are understandably concerned about the high cost of medical malpractice insurance, limiting patients’ ability to seek compensation for injury is not the answer. This is why I support the repeal of the McCarran-Ferguson Act, which would remove the antitrust exemption currently given to health insurance companies and, in turn, strengthen doctors’ ability to reduce insurance costs.

A repeal of the act would be preferable to restricting patients’ rights, an approach that is misguided for several reasons.

First, restricting patients’ rights does nothing to eliminate preventable medical errors. Every year, hundreds of thousands of Americans are seriously injured because of preventable medical errors, and as many as 98,000 die. Beyond the very real toll that medical malpractice takes on the injured and their families, these errors cost the health care system up to $29 billion per year. While it is disputed whether limiting medical lawsuits would actually reduce health care costs, it most certainly would limit the legal options now afforded to patients who suffer as a result of malpractice. To decrease the cost of health care we need to focus more on preventing medical errors instead of restricting the ability of a patient to pursue justice.

Second, claims that “frivolous” lawsuits are threatening the justice system and our medical professionals are simply not supported by the research. A 2006 study published in the New England Journal of Medicine found that the contention that frivolous lawsuits have overrun the judicial system is “overblown.” Instead, research showed that the vast majority of malpractice claims — about 97 percent — involved an actual medical injury and that 80 percent involved a major disability or death. In fact, the study found that nonpayment of claims in cases where an error has occurred represents a much bigger problem for the medical industry.

Finally, it is the insurance companies — not the cost of malpractice awards — that are to blame for the high cost of malpractice premiums. Research shows that malpractice claims have remained stagnant for decades and that the number of lawsuits is significantly smaller than the actual number of people harmed by medical errors.

Even though medical malpractice reform is little more than a red herring in the overall health care debate, the new health care law contains a demonstration grant program to states for the implementation and evaluation of “alternatives to current tort litigation.” Additionally, President Barack Obama has directed the Department of Health and Human Services to supply demonstration grants to states to create new models that address patient safety, expedite the processing of claims and reduce frivolous lawsuits and liability premiums. These are reasonable ideas that should be given sufficient time to be implemented and reviewed.

But Congress can act right now to take on the high cost of malpractice insurance by repealing the McCarran-Ferguson Act. That act exempts insurance companies, including health and medical malpractice insurers, from federal antitrust laws. Repealing the act would allow antitrust regulators to ensure that companies are not conspiring to keep rates high or engaging in other anti-competitive conduct that hurts doctors, hospitals and, ultimately, patients.

I worked hard to see this provision included in health insurance reform, and the House did include a repeal of McCarran-Ferguson in its version of reform legislation. While it was not included in the bill that was finally enacted, Congress must not lose sight of this key priority.

That we have recently achieved so much in the fight for quality, affordable health care for all does not relieve us of our obligation to do even more toward that noble goal. Congress can and should set about the task of finally repealing McCarran-Ferguson.

Rep. Jerrold Nadler (D-N.Y.) is a member of the Judiciary Committee.

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