In last night's speech to the joint session of Congress, the president was pretty tough on his opponents, pounding them on "scare tactics" and accusing them of trying to score short-term political points at the expense of the nation's well-being. But he held out one glimmer of hope to Republicans: medical-liability, or tort, reform. "I don't believe malpractice reform is a silver bullet, but I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs," the president said, prompting enthusiastic applause from the GOP. He unveiled a plan to pursue "demonstration projects" in various states that would explore several options for reducing defensive medicine practices while ensuring patient safety. Obama has directed Secretary of Health and Human Services Kathleen Sebelius to commence work on the projects immediately.
Tort reform has long been a pet issue for Republicans, and it's broadly popular with voters. A recent poll by Common Good and the Committee for Economic Development found that 83 percent of Americans want tort reform included in health-care reform. Additionally, 67 percent prefer the idea of a separate system of health courts to decide malpractice cases over the existing system. In committing to tort reform, the president may well have changed the political landscape of the health-care debate. "It is going to be much more difficult for conservatives and opponents of reform to walk away now that he has explicitly incorporated a pretty popular policy," says Anne Kim, a Democratic strategist at the Washington-based think tank Third Way. To continue to oppose reform after Obama made concessions on one of their signature issues risks making Republicans look churlish and petty. "Republicans are going to have a very hard time looking reasonable if they oppose this proposal," says Kim, "and that is precisely the intent of the proposal that was announced last night." Was this a masterstroke by the president?
Republicans aren't so sure. They're not convinced that Obama's promise goes far enough. "It will take more than just a few lines in one of the president's speeches to prove he's genuinely interested in achieving tort reform," says Republican strategist Kevin Madden, who worked as an adviser on Mitt Romney's presidential campaign. Historically, Democrats have been reluctant to touch tort reform. Republicans contend that's because Democrats receive enormous campaign donations from lawyers who make big bucks on malpractice suits. According to Open Secrets, the Obama campaign received $43 million in 2008 from lawyers and law firms. Hillary Clinton received $16 million, while John McCain netted almost $10 million. The top 20 recipients are predominantly Democrats, including Dick Durbin, Chris Dodd, Mary Landrieu, and Mark Udall. "The trial-lawyer lobby is a deeply entrenched special interest that has long enjoyed legislative protection with Democratic lawmakers in Congress," says Madden.
But following the speech, Democrats haven't been rushing to defend lawyers. Perhaps that's not so surprising. "The relationship Democrats have with trial lawyers is about money, not love," says one Democratic strategist. For Democrats, an opposition to malpractice reform doesn't hold the same sort of ideological potency as an issue like the public option, which reflects more fundamental debate about the role of government and the meaning of being progressive. We're unlikely to see Democrats falling all over themselves to defend rich trial lawyers, especially now, as that would mean opposing an explicit, public request from the president.
The more pressing question for Democrats is whether tort reform will affect their fundraising, especially going into what looks like a tough election cycle in 2012. Probably not, says one Democratic strategist. "If health-care reform succeeds, that's all that needs to happen. Money always goes to the winners, not the losers," the strategist said. For their part, trial lawyers don't really have anywhere else to go, and they still have Democratic friends when it comes to other issues important to them, like class-action reform.
The president won't be able to fully capitalize on his commitment to tort reform until he releases more details of the demonstration projects. An administration official told NEWSWEEK today they're open to considering a wide range of reforms. Topping the list is an early-disclosure reform that Obama put forward as a senator, which was cosponsored by Hillary Clinton. Early disclosure would encourage doctors to admit mistakes, apologize, and turn to mediation rather than malpractice suits. Their apology couldn't be used as evidence against them if the case ends up in court. The second would be a requirement that any malpractice complainant obtain an affidavit stating that the case has merit before it is allowed to proceed to court. Both of these measures have already been accepted by the House Energy and Commerce Committee as amendments to the health-reform legislation. They're also projects that the administration has the authority to implement without the approval of Congress.
Philip K. Howard, chairman of Common Good and a vocal proponent of malpractice reform, has reservations about both ideas. While he admits they each have merit, he worries they simply aren't comprehensive enough. Ultimately, some cases will still end up in court, creating the same liability fears that prompt doctors to engage in defensive medicine today. "None of them work unless the system of justice will be reliable from case to case to separate good care from bad care. That is what is required to eliminate defensive medicine," Howard says. He's hopeful, calling Obama's statement a "bold step," but it's tempered by the president's lack of specificity. "There's lots of room for slips between the cup and the lip here," he says.
By introducing tort reform at this late stage, the president may well have grabbed the upper hand. He's made a popular concession on an issue Republicans care dearly about, and it's unlikely to cost him much on the left. It may not be the answer to spiraling health-care costs, but tort reform might just be the political silver bullet Obama needs so badly right now.
