Can Congress Pass Federal Tort Reform?

Eli Y. Adashi, MD; Congressman Phil Gingrey, MD


July 06, 2011

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Eli Adashi, MD. Hello. I am Eli Adashi, Professor of Medical Science at Brown University and host of Medscape One-on-One. Joining me today is Representative Phil Gingrey, a women's health provider and a legislator, now in his fifth term. Representing Georgia's 11th district, Dr. Gingrey, 1 of 17 physicians in the House of Representatives, Co-chair of the GOP Doctors' Caucus, brings critical insights to the Energy Subcommittee on Health, of which he is a member. Welcome.

Representative Phil Gingrey: Thank you Dr. Adashi. I'm glad to be on your show.

It's Time for Tort Reform

Dr. Adashi: It's plainly wonderful to have you with us. We are very keenly interested in all legislators but especially physician legislators. In January you sponsored the Health Act of 2011, which seeks to bring about tort reform. Would you take a few moments to describe the highlights of this bill, what it seeks to accomplish, and perhaps the backdrop to what drove you to launch this initiative?

Rep. Gingrey: Eli, what drove me to launch it was 31 years of medical practice. It was not all in the specialty of women's healthcare. I was a Marcus Welby-type family practitioner in a small town in South Carolina a number of years ago. The accumulation of clinical practice and experience and, unfortunately, a couple of trips to state court in regard to medical liability cases led me to realize there needed to be a leveling of the playing field, essentially. What happened in California back in the late 1970s, the Medical Injury Compensation Reform Act (MICRA), was very successful and the lynchpin of that legislation was a cap on noneconomic, so called "pain and suffering," awards. There are other appropriations in that bill that are in my current health act: efficient, low-cost, timely, accessible healthcare of the 112th Congress, as you described. It's been a long time, we've been working a long time. I've been in the Congress now for 8.5 years, this is my fifth term. I have actually authored this bill several times in the House, certainly during Republican control when I was first elected, and it passed the House only to die in the Senate.

We feel, on the basis of President Obama's comments, especially leading up to and during deliberation on the health reform act (we sometimes refer to as Obama Care), the Patient Protection Affordable Care Act (PPACA), it was promised that there would be a provision dealing with medical tort reform, realizing that the Congressional Budget Office says in a bipartisan report that it would save at least $62 billion over 10 years and that's not chicken feed, that's a significant amount of money. I think it would be much more than that. The RAND Corporation and other studies have been done suggesting that it may be even $150 billion per year, not over 10 years. The big savings, of course, would be in reducing the need for doctors, especially in the high-risk specialties like mine (OB/GYN), neurosurgery, emergency department physicians who order so many things that we refer to as defensive medicine to be able, if necessary, subsequently, to defend themselves in a court of law, to say, "Oh yes, we ordered that test." Many times, however, on the basis of their clinical skills and acumen, doing a thorough physical examination, and, as you know, doctor, listening to the patient many times will tell you what's wrong, and you know when it's necessary or unnecessary to order some of these very expensive tests.

A National Solution?

Dr. Adashi: To some, the issue of tort reform is a state issue. To others, as this bill would propose, a federal or national solution is called for. How did you think about this issue and ultimately arrive at the notion that we need to go beyond the states and put on the table a national solution?

Rep. Gingrey: It's an interesting question that you ask, and this issue came up when the bill was initially assigned to the Judiciary Committee of the House of Representatives -- a Democratic amendment to that effect, saying essentially that the 10th Amendment should restrict this kind of legislation to the respective states. The point that the commerce clause, Article 1 Section 8 of the Constitution, very specifically makes is that when you affect interstate commerce, then federal law has primary jurisdiction. In this case, particularly Medicare, Medicaid, State Children's Health Insurance Program (SCHIP), the SCHIP program in Georgia called PeachCare -- all these federal programs -- TRICARE, military healthcare, you're talking 60%-70% of the healthcare dollars spent every year directly or indirectly involves us the taxpayers, not just the citizens of Georgia. Under the commerce clause, clearly, the jurisdiction is there, and it's necessary because quite honestly, in certain states, like my own, Georgia, the legislature and the citizens of Georgia, not just the physicians who practice in Georgia or the hospitals domiciled in Georgia, felt very strongly the need for medical tort reform, not unlike the California bill. It was passed by the Georgia legislature only to be cut down in 2 years by the Georgia Supreme Court, implying that it was not constitutional according to the state constitution, so that will happen time and time again. States like Texas, when they passed their tort reform legislation it was by changing their constitution. It's very difficult to do that. That's why it is necessary to have a federal law.

The federal law in our bill, the health act, would not preempt if a state has already dealt with the caps on awards for noneconomic damages (sometimes referred to as "pain and suffering"). If a state has a cap that's higher than what's in the health act ($250,000), the state provision would prevail. If it's lower, the state provision would prevail.

Dr. Adashi: The necessary provisions that are in your bill are not to override or preempt existing state bills?

Rep. Gingrey: That is correct.

Dr. Adashi: As we speak, the bill has successfully received the endorsement of both the Judiciary Committee and the House Commerce Committee. Where does the bill go at this point?

Rep. Gingrey: The bill will go to the House Committee. The bill has reported favorably out of the 2 committees to which it was assigned. It goes back to the House and it will be placed on the calendar. The timing on that would be dependent on leadership. The bill is HR-5, so you might say it is the fifth most important bill to the Republican House leadership speaker Boehner. We will of course be communicating with leadership. I would hope that this bill would be on the House floor certainly before the August recess.

Dr. Adashi: I know it's difficult to foresee or predict outcomes, but what is your best sense of the disposition of the bill in the House first, and then perhaps in the Senate?

Brass Tacks: The Real Cost Drivers

Representative Gingrey: I think it will pass the House. It's nice this time that it is a bipartisan bill. My original Democratic cosponsor, along with the chairman of the judiciary committee, Lamar Smith of Texas, is my Georgia colleague, David Scott, with whom I served in the Georgia Senate for a number of years. I have served here in Congress with David as well; we are from adjoining districts in the state of Georgia. I do believe that the bill has a great chance and I think it will pass the House of Representatives with some Democratic support. In the Senate, of course, it's going to be a heavier lift; we understand that. I'm going to ask the President for his support. The President talked about it when he spoke at the American Medical Association a couple of years ago. He realized the need and promised organized medicine that there would be some provision in the health reform act for some significant changes, but it turned out not to be the case. A few pilot programs and $50 million over 10 years is really not very much. The President realizes that there will be a shortage of physicians if we don't do something about this. The real cost driver is not the price of a malpractice insurance premium to the individual physician -- sure, that might cause that doctor to limit his practice somewhat with respect to high-risk patients or affect his or her willingness to practice in a state where there are a lot of frivolous lawsuits. The real cost to the healthcare system -- to Medicare and Medicaid and these other programs that we have mentioned -- is the very expensive testing, particularly imaging procedures. That's why I feel optimistic this time, more optimistic than I ever have in the past, so hope definitely springs eternal and I think this might be the year.

Dr. Adashi: Keeping the particular make-up of the current Senate, are you thinking of Senators as advocates or supporters? n particular, I'm thinking of the 3 physicians who serve in the Senate. Do you have any sense of whether the Senate is shaping up that way?

Rep. Gingrey: I think the physician members will be very supportive. We are very grateful to them. Senator Barrasso is very strong in the leadership now. Senator Coburn is a very strong voice in the Senate, a conservative voice, and yet as an example, someone who is a part of the group of 6 who are working on the debt and deficit solution and someone who has a close relationship with President Obama, both professionally and personally. We have more leverage in the Senate now, maybe even more than when our friend Dr. Frist was the Senate Majority leader. A lot of this, as you know, is about timing, and this seems like the time for meaningful, fair and balanced medical liability reform.

Dr. Adashi: Thinking about the President for just another moment, I believe that the $50 million in the fiscal year 2011 budget has been erased in the context of continuing resolution, but there is, I believe, a request for $200 million in the fiscal year 2012 budget. Understanding that that budget is still very much in flux and is likely to be subject to significant adjustments, is it conceivable that that component of the legislation could be protected at least in part so as to remain true to this spirit that both the President and the House now appear to be supporting?

Rep. Gingrey I think so, but as you put it, "true to the spirit" -- the spirit is just not enough. We've had a long experience since the passage of MICRA, we're talking about 30+ years of good results, and I think it's time to act. I don't want us to say, "Well, we're moving in the right direction. We've kicked the ball a little bit further down the road." I think it's time to act and pass this bill, and that doesn't prevent the states from saying, "$250,000 is not enough -- we need to go higher," as Georgia, Florida, and Texas have done, and even as West Virginia has done, and the same with respect to some of the other provisions, the most significant of which is flexi-caps. The states have the ability to go further, to adjust for inflation, and say, perhaps, "$250,000 was okay in 1979, but maybe it ought to be $350,000" or "maybe it ought to be applied to more than one defendant, if there is more than one." That's what a lot of the states have done.

Right to Day in Court

Rep. Gingrey: In medical liability reform, there is absolutely no change with respect to a patient's ability, their God-given right, their constitutional right, their state right, to a redress of grievances in a situation where they have been injured by a doctor practicing below the standard of care for that community and for that specialty of medicine; a hospital also has the same culpability. These individuals will and should continue to have their day in court. Economic damages include lost wages, lost income, future medical care, future medical needs, assistance, etc., and these awards, judgments, and settlements are very often in the millions of dollars. Even in the state of California, with the MICRA law, there have been cases where the economic award could be $95 million, and still the noneconomic award could be the $250,000 for pain and suffering.

State Flexibility Act

Dr. Adashi: Moving now to a slightly different topic: earlier this month you introduced the State Flexibility Act[1] to repeal the Medicaid Maintenance of Effort Requirements of the Affordable Care Act. It has been a subject of some controversy and the subject of several bills in addition to your own, with Senator Hatch having a stand-alone bill and Senator Coburn having a provision along these lines in his Medicaid bill. Can you give us perhaps a few words about what type of reasoning and thinking went into moving forward with this initiative in your mind?

Rep. Gingrey: We are very concerned about a provision in PPACA that requires the states to "maintain their effort" -- the section is referred to as maintenance of effort with respect to rules and regulations for how states run their Medicaid programs. When times were good and the money was flowing, almost from trees, states would apply under the Medicaid program for a waiver (it's called an 1115 waiver) to try to cover more folks than just those at 100% of the federal poverty level under Medicaid, more than just women and children, even to cover childless adults, in some cases to go as much as 185% of the federal poverty level, maybe even 225%, and those waivers, although supposedly the requirement being revenue-neutral (you don't spend more the next year than you did the last), by the granting of these waivers, many states have received those waivers and now they are stuck with them because of the provision in the Affordable Care Act that says to states, "You cannot change that -- you cannot even review your system of determining eligibility." You can't go back and say, "Five years ago, Mrs. Smith, you were eligible because of income for this program. What is your current income?" Maybe that individual has since gone on to college and gotten a degree and is making $75,000 or $100,000 a year and certainly doesn't need to be on the Medicaid program and possibly even has the opportunity to get health insurance coverage from her employer. Yet the states are prevented from doing that, and this bill, the State Flexibility Act, would just simply strike that section and let the states continue to be the incubators of success and utilize their ability to design programs and also, if necessary, to reduce their rolls of people who are on the program inappropriately.

Bitten by the Public Service Bug

Dr. Adashi: Finally, and on a personal note, I think our viewers would like to know -- when did you decide to run for public office and why?

Rep. Gingrey: I think when I had my first stroke. That's not very funny, is it? Stroke is never funny. It was not an epiphany but just a gradual thing that happened in my life. I was a local school board member, part-time; it didn't take much time away from my practice. Then I was a state Senator, and I would take a short sabbatical each year when the General Assembly was in session. I got the bug of public service; I thoroughly enjoyed it and thought that I had the talent and ability to communicate. While I no longer practice medicine (I'm not permitted to because I'm a full-time employee of the taxpayer), the decision to run for Congress was the right decision for me. It's not unlike the movie "The Candidate" starring Robert Redford (although I'm no Robert Redford) but at the end of that movie when he finally won that tough Senate race he looked at his advisors and said, "Now what do we do?" I had that rude awakening when I was elected to Congress back in 2002 and sworn in in 2003. It's been over 9 years now, and I'm finally working in a Good Samaritan clinic in my district for low-income, uninsured, and Latino populations so I'm doing that once or twice a month. I remember what it was like as a young student at Georgia Tech when I made a decision to go to medical school and made medicine my career.

Dr. Adashi: On that note, sincere thanks to Representative Gingrey and to you, our viewers, for joining Medscape One-on-One. Until next time, I am Eli Adashi.


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