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Obama Proposes Aid to States for Malpractice Reform



President Obama entered the fray on medical malpractice reform recently in his recent budget request to Congress. According to Minnesota Public Radio, the budget calls for a $250 million grant to states to help them change medical malpractice laws. One of the suggestions? Setting up "health courts" where medically trained judges, not juries, would decide cases. The judges apparently would undergo some sort of special medical or scientific training. They would also enlist the aid of neutral medical experts to assist them with their decisions. Presently, each party to a medical malpractice retains their own experts to present expert testimony, which the judge may consider.

The biggest problem with the special health court proposal is that it is unconstitutional in many states. The United States Constitution guarantees citizens the right to a jury trial in federal cases. Many state constitutions have similar provisions, which allow a plaintiff to have his or her case decided by a jury if he or she chooses. How the Obama administration proposes to clear this hurdle is unclear.

The reasoning behind the proposal appears to be that doctors are forced to practice "defensive" medicine because of the fear of malpractice litigation. This purportedly causes doctors to order many more tests than are actually needed, just to protect themselves from later litigation. However, the MPR article questioned whether these additional tests are ordered out of fear, financial gain, or at the patient's request. It cited a 2008 report from the Government Accounting Office that found patient requests were part of the reason that spending on imaging services such as MRIs and CT scans more than doubled from 2000 to 2006.

Politics also may play a part in the proposed multimillion-dollar grant to look at medical malpractice reform. The MPR report characterizes the item as "throwing a bone" to congressional Republicans, who claim the administration has done nothing to stem the rising costs of health care and who are eager to either repeal or modify Obama's health care law. Unlike state governments, who are attacking malpractice laws as a way to save money, the federal government now appears ready to spend money to cap jury awards and, it seems, eliminate jury trials.