As Congress renewed its debate over medical liability reform last week, a group of industry leaders-many of them doctors, purchasers and heads of academic health systems-called for more extreme measures to take legal heat off providers, including scrapping lay juries in medical injury cases.
The petition to lawmakers, signed by 70 industry leaders, called for "a new system of medical justice" meant to prevent jury awards that it said were harming the healthcare system.
The petition was submitted by an organization called Common Good, which described itself in a news release as a "bipartisan legal-reform coalition." Its chairman is Philip Howard, a New York lawyer with the law firm Covington & Burling.
Notably absent from the petition were leading trade groups including the American Hospital Association and the American Medical Association.
While no hospital groups signed, many individual leaders did, including Gail Warden, president and chief executive officer of Henry Ford Health System, Detroit; and George Halvorson, chairman and CEO of the Kaiser Foundation Health Plan; as well as the chiefs of smaller physician organizations, such as Jack Lewin, CEO of the California Medical Association; and of insurers, including Karen Ignagni, president and CEO of the American Association of Health Plans.
The absence of major trade groups indicates the proposal might have been considered too politically radical.
"I think we'd prefer to keep the jury system, quite frankly," said Curtis Rooney, senior associate director and counsel for the AHA, which said it was not approached to sign the petition.
Rooney said some of the ideas expressed by Common Good are widely agreed on, but the AHA "would rather go down the road of the Greenwood bill." Legislation introduced last month by Rep. Jim Greenwood (R-Pa.) would cap noneconomic damages related to medical malpractice at $250,000 and put the same lid on the punitive damages patients now receive to punish those who provided negligent care.
Greenwood's solution, which was debated in a House Energy and Commerce Committee health subcommittee hearing last week, is modeled largely on the California Medical Injury Compensation Reform Act of 1975, which proponents say has successfully held down premium increases.
But Common Good would like to see Congress go much further. Those who signed the group's petition-including Institute for Healthcare Improvement President and CEO Don Berwick, who ranked No. 3 on Modern Healthcare's 2002 list of the industry's most powerful people-said the medical liability system requires radical change.
Common Good called for a system to replace lay juries with "expert decisionmakers" who would use data on treatment protocols and clinical standards to adjudicate malpractice disputes instead of juries made up of ordinary citizens who can't easily determine whether a doctor acted in accordance with accepted clinical practices. Howard said lay juries are "not totally reliable."
"It is important to address the spikes in malpractice premiums that we now see throughout much of the country," said Herbert Pardes, president and CEO of 2,112-bed New York-Presbyterian Hospital, who signed the petition.
Greenwood's bill not only would limit legal awards paid to physicians but also to nursing homes and some drugmakers and device manufacturers. That provision bothers many Democrats who think physicians alone should be subject to any new law.
But many lawmakers agreed that some action is needed.
As physicians retreat from markets where malpractice premiums are too expensive and patient rewards continue to increase unchecked, "clearly there's a problem," said Rep. Anna Eshoo (D-Calif.). "What's not so clear is what the solution should be."