Could This Tort Reform Proposal Work?; Where Caps Stand; More

Wayne J. Guglielmo, MA


April 24, 2014

In This Article

Obamacare Falls Short on Halting Defensive Medicine, Says Expert

Lawyer-turned-liability-reformer Phillip K. Howard has his own formula for reinventing the current adversarial system for resolving med-mal claims, and not just in a single state.

Writing in his March blog for the Huffington Post, Howard argues that truly affordable healthcare requires nothing less than a new legal framework.[3]

For Howard, the author of The Death of Common Sense: How Law is Suffocating America, there are "3 structural causes of unaffordable healthcare in America": defensive medicine, the fee-for-service reimbursement system, and bureaucracy and paperwork.

The drafters of Obamacare, Howard says, took a stab at addressing each of these problematic areas. In the case of fee-for-service, for instance, the law pushes the current healthcare system in the direction of Accountable Care Organizations (ACOs), which Howard applauds: He likes the idea that ACOs make it possible for "a provider to take care of all of a person's health needs for one annual fee." If specialized care is required, he says, it should be done as bundled payments -- "basically a fixed fee for everything to do with that problem."

Howard gives the Affordable Care Act (ACA) low marks, though, when it comes to addressing the problem of defensive medicine. Early drafts of the law, he says, "included provisions for pilot projects of alternative systems of justice" -- presumably including special health courts, which Howard has long championed.

But Howard charges Senate Majority Leader Harry Reid, "a champion of trial lawyers," with watering down the provisions. As enacted, says Howard, the ACA permits pilot projects to go forward only if patients can opt out or voluntarily withdraw from participating in the alternative at any time. But if an injured patient seeking damages can request a jury trial at any point, he says, that "eviscerates the whole idea of consistent decisions."

He urges the President to heed public opinion polls and push harder for reforms involving special courts.


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