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President-Elect Trump

Special Report: The Future of the Medical Professional Liability Industry and the PPACA under a Trump Administration

The Future of the Medical Professional Liability, Patient Protection & Affordable Care Act Under a Trump Administration

Having weathered two Supreme Court challenges and more than 60 repeal attempts by a GOP-controlled Congress, it was the 2016 election that ultimately handed the Republican Party the ammunition it needs to neuter the Patient Protection & Affordable Care Act of 2010.

With a President-elect who campaigned on a full repeal and replacement of the Affordable Care Act as well as Republicans in control of both houses of Congress, it’s safe to say that President Obama’s signature health law — if not fully repealed — will undergo significant changes.

Despite the unified Republican government, Democrats in the Senate are likely to filibuster any wholesale attempt at repealing the landmark legislation that brought 22 million Americans healthcare coverage for the first time, leaving Republicans the parliamentary procedure known as reconciliation to hamstring the law often pejoratively referred to as Obamacare. The reconciliation process is restricted to matters that relate to spending, require only a majority vote and would allow Republicans to repeal the individual mandate that all Americans purchase health insurance, take apart the Affordable Care Act’s expansion of Medicaid and rescind the premium tax credits for low- and middle-income individuals purchasing health insurance on the open market.

The Republican Congress moved a reconciliation bill that would have repealed those portions of the Affordable Care Act to President Obama’s desk where it was promptly vetoed in December of last year, and the rhetoric so far suggests they are likely to use that bill — or one very similar — to financially hobble the healthcare law early in the Trump presidency.

The replacement portion of “repeal and replace” will likely take much longer as Republicans try to coalesce around legislation that its members can support and doesn’t result in the politically untenable position of abruptly throwing the newly insured out of healthcare access. Add to that the fact that many of the Affordable Care Act’s regulations have woven themselves into the healthcare delivery system during the last six years, and any quick, complete replacement of the Affordable Care Act is unlikely.

How Will Medical Liability Be Affected?

President-elect Trump has been mute so far on what role medical liability tort reform might play in his vision for the American healthcare delivery system, but Speaker of the House Paul Ryan released a 37-page white paper in June of this year where he broadly outlined his goals for replacing the Affordable Care Act.

Ryan’s white paper makes several calls for federal-level medical liability tort reforms. It argues the United States’ current system for medical malpractice remedy has “imperiled patient access and imposed tremendous costs on our nation. The current system has forced doctors out of practicing in certain specialties; it has caused trauma centers to close; and it has forced pregnant women to drive hours to find an obstetrician. The current system also has imposed a tremendous burden in unnecessary costs on our national healthcare system and federal government. Estimates are that the failure to enact meaningful medical liability reform costs our nation’s healthcare system as much as $300 billion each year.”

In its plea for tort reform, Ryan’s white paper argues “comprehensive medical liability reform that includes caps on noneconomic damages will improve patients’ access to quality care while reducing the overall cost of healthcare in America. Our plan will include liability reform that includes caps on noneconomic damage awards.”

The white paper further promises to “work with the states to pursue a wide variety of options such as loser-pays, proportional liability, the collateral source rule, consideration of the statute of limitation, safe harbor provisions, health courts and independent pre-discovery medical review panels.”

If President-elect Trump were a typical Republican, one could assume he holds views similar to Ryan, but the mercurial populist and serial-filer-of-lawsuits Trump campaigned on sticking up for the “little guy” and never officially disclosed his views on tort reform.

“One of the big questions is where the Trump Administration will be on tort reform,” said Mike Stinson, vice president of governmental relations and public policy for PIAA, the insurance industry trade association that represents entities doing business in the medical professional liability arena. “We’re not 100-percent sure we have a pro-business President-elect who is also going to be pro-tort reform. We usually link those two ideas together, but he could go in directions that would normally seem contradictory.”

Add to that the Freedom Caucus — comprised of conservative, libertarian-leaning Republican members of the House — having thwarted their own party’s Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act, which would have imposed a nationwide cap on damages, from getting out of committee earlier this year on grounds that the federal government has no authority to overwrite state civil liability laws, and nationwide medical liability tort reform under a unified Republican government seems like even less of a slam dunk.

How Will Malpractice Litigation Be Affected?

While political partisans and healthcare pundits debated the constitutionality and/or practical effectiveness of the Affordable Care Act, the medical malpractice insurance industry was closely watching the U.S. court system as medical malpractice defense attorneys argued — both successfully and unsuccessfully — that provisions of the Affordable Care Act should impact a plaintiff’s ability to recover the cost of future medical expenses.

When a negative medical outcome occurs, the lion’s share of economic damages to a plaintiff is most often the costs pertaining to his or her future medical care. Depending on the age of the patient and the severity of the medical injury, the cost of future healthcare needs can easily stretch into the millions of dollars. Traditionally, it has been generally assumed that 100 percent of these medical expenses would be paid for out-of-pocket by the plaintiff. Life care plans have rarely, if ever, taken into consideration the benefits of the plaintiff’s health insurance that would abrogate many of the projected expenses. This is because — prior to the Affordable Care Act — healthcare insurance almost always carried preexisting condition exclusions as well as annual and lifetime expenditure limits.

Savvy medical liability defense attorneys recognized that the Affordable Care Act removed preexisting condition barriers and expenditure limits as well as required all Americans to obtain some basic level of healthcare insurance. If this is the case, they contended, why can’t the defense argue future medical expenses will never be fully paid by the plaintiff out-of-pocket, and as such, the health insurance they are required to carry should be considered as a collateral source of recovery, subrogating portions of the total cost of economic damages?

Rather than paying the total cost of the plaintiff’s life care plan, these defense attorneys argued, the defendant should only be required to pay for the premium costs of obtaining the plaintiff’s healthcare insurance as well as any associated co-pays and deductibles. This argument has had mixed results so far in the American court system.

In court decisions that barred consideration of the Affordable Care Act offset potential, the most common reasoning had been that the Affordable Care Act’s future is too unsettled. Judges opined that with the heated politics surrounding the Affordable Care Act, the legislation could be struck down in one of the many lawsuits challenging its constitutionality or repealed when the balance of power shifts in Washington, D.C. — especially when one political party has been campaigning almost exclusively on doing just that. This was the reasoning in a 2012 case in Alabama, a 2013 case in Illinois and a 2014 case in Pennsylvania, among others.

Conversely, courts in Arizona, California, Hawaii, Illinois, Michigan and Ohio have allowed the Affordable Care Act’s mitigating effect to be admitted into evidence. In the Hawaii case, the defendant was allowed to cross-examine the plaintiff’s life care planner on the setoff effect of the Affordable Care Act on future medical expenses. In the Michigan case, the court found that “insurance provided under the Affordable Care Act is reasonably likely to continue into the future and that its discussion before the jury is not precluded.” In the Ohio case, Jones v. MetroHealth Medical Center, the court reduced a $14.5 million future damage award to $2.9 million by offsetting amounts covered under the Affordable Care Act, but allowing recovery for premiums, out-of-pocket costs and other expenses.

“If the Affordable Care Act is repealed, you’re no longer going to be able to compel people to purchase health insurance and you’re going to lose the future damages argument,” said Paul Greve, JD, RPLU, executive vice president/senior consultant of the Willis Towers Watson Health Care Practice. “Everyone in our industry had been watching the case Jones v. MetroHealth Medical Center in Ohio. The lower courts agreed with our argument and it was on its way to the state Supreme Court where we hoped it would set precedent. If Hillary Clinton had been elected president and Ohio maintained a Republican Supreme Court, which it did, the chances were very high that Jones was going to be upheld at the highest level, and we would then have a case other courts around the country could look to. That’s probably not going to happen now. If the requirement to purchase insurance is repealed, the argument is probably dead.“

By Michael Matray, the Editor of the Medical Liability Monitor. He can be reached at editor@mlmonitor.com

CONFIRMED: Medical Malpractice Insurance Reform IS on the debt ceiling table.

Our source has just confirmed with their sources in the White House that medical malpractice insurance reform is on the table to try and get a debt-ceiling deal finalized by August 2nd. We hope that President Obama takes a physician-advocate approach when negotiating with the GOP leadership. Medical malpractice insurance reform has been something we’ve been hoping would happen, but only in a way that still allows most Americans access to quality healthcare.

Lets hope that this is the opportunity we’ve been waiting for: True medical malpractice insurance reform.

Louisiana Republicans Eager to Push Medical Malpractice Reform

Side note: Republican congressmen from Louisiana are eager for the new session of Congress to begin. The #1 item on their agenda…. the repeal of Obama’s historic health care overhaul. But there is one problem, they are uncertain of what they will propose in its place. Experts believe that the vote against health care reform will amount to little more that “political lip service” since the vote will follow party lines and the Republicans lack the numbers needed to pass a bill to overturn Obamacare. The Republicans have been against Obamacare from the beginning calling it a government take over. They have proposed alternative measures including medical malpractice tort reform as a way of lowering heath care costs.

By Bill Barrow
The Times-Picayune

As a new Congress takes office today, the Obama administration and Senate Democrats have launched an offensive against House Republicans’ promise to repeal the president’s new health-care overhaul. But the new majority, including members of the Louisiana delegation, isn’t blinking, even as it is yet unclear what specific policy path they want to take in the long run with Democrats still in control of the Senate and the White House.

Health and Human Services Secretary Kathleen Sebelius called it a “bad idea” to reverse many provisions that are already in place, particularly expanding Medicare drug coverage, tax credits for some businesses that provide employee coverage and new rules that make some insurance companies spend more on actual care, while making it harder for the firms to drop policy holders. The first major round of changes went into effect in September, almost six months after President Barack Obama signed the bill. More provisions were triggered at the start of the year.

“The new law is already helping Americans get the care they need and establishing a level of accountability for insurance companies,” Sebelius told reporters Tuesday in a national conference call. “Those are goals we’ve been talking about for years, and we’re just now making progress. That’s why it’s so surprising to hear members of Congress wanting to go back to the old status quo that was not working for so many Americans and small businesses.”

Read the Rest at NOLA.com

Obamacare Fails to Address Tort Reform

Side note: The massive health care reform bill, passed by Congress earlier this year, did address many of the problems in the nation’s health care system. Yet it failed to address one of the key factors contributing to skyrocketing health care costs, medical malpractice law reform. Even though President Obama stated in a speech, given in 2009, that doctors are forced to perform unnecessary tests and treatments, to protect themselves from medical malpractice lawsuits, the massive reform bill did nothing to address the topic of out of control medical malpractice litigation.

By PETER ORSZAG
New York Times

The health care legislation that Congress enacted earlier this year, contrary to much of today’s overheated rhetoric, does many things right. But it does almost nothing to reform medical malpractice laws. Lawmakers missed an important opportunity to shield from malpractice liability any doctors who followed evidence-based guidelines in treating their patients.

As President Obama noted in his speech to the American Medical Association in June 2009, too many doctors order unnecessary tests and treatments only because they believe it will protect them from a lawsuit. Instead, he said, “We need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine and encourage broader use of evidence-based guidelines.”

Continue to the NYTimes to finish reading this story

GOP divided on how to replace health overhaul law

Side note: There is one thing that the GOP agrees on; they plan to repeal Obama’s health care law, what they refer to as Obamacare. What they don’t agree on is what they will replace it with. The Republicans feel confident about gaining control of the House this year. They cite that there are approximately 75 seats held by Democrats that are in contention; they need to gain only 40 to take a majority. Some Republicans back a plan that would cover an additional 3 million Americans by 2019, as opposed to the 33 million covered by Obamacare. Other Republicans propose weaning the American public off of employee provided insurance while replacing Medicaid with private insurance. One thing that all Republicans agree on is the need for medical malpractice reform. We all thought, or hoped, that because medical malpractice insurance reform was the one thing that President Obama and the GOP agreed upon, that it would be in the final bill. Unfortunately, that was not the case. We hope that as this bill gets revised over the years…..that this is finally added to the bill, which not only keep high-risk physicians in areas that have high malpractice insurance costs, but it will ultimately cut down on the healthcare costs because the need to practice defensive medicine will almost certainly decrease. It would have been nice if the Dems would follow the President’s leadership on this very important issue!

By RICARDO ALONSO-ZALDIVAR
Associated Press

WASHINGTON — Republicans are promising to repeal and replace President Barack Obama’s health care overhaul if they win control of Congress. But with what?

Not even they know.

Some have proposed major changes to workplace coverage, even turning Medicare into a voucher plan. Many prefer small steps that tiptoe around political land mines. Others want a clean start.

“During the health care debate there was just as much division within Republicans as there was between the parties,” said Douglas Holtz-Eakin, a leading adviser to 2008 GOP presidential candidate John McCain. “It will be more visible now that Republicans may be in charge of one house because those divisions will come to the surface.”

Republicans appear have better than even odds of winning the House. At least 75 seats are competitive, the vast majority held by Democrats, according to a recent Associated Press analysis. The GOP only has to win 40.

One of the first acts of a Republican majority would be a vote to repeal what they dismiss as “Obamacare.” But they haven’t said much about what would replace it.

A GOP bill rejected by the Democratic-led House last year is the closest thing to a starting point.

Read the Rest of the Story here

Shortage of Doctors Proves Obstacle to Obama Goals

side note: This nytimes article sheds light on some basic problems in healthcare. There is an acute shortage of primary care providers in this country. That impacts access to care. One solution in Congress is to increase the level of Medicare reimbursement to primary care providers. However the specialist groups say, don’t mess with our reimbursement, find new dollars. That increases healthcare spending. This is not a problem that is easily solved.

By ROBERT PEAR

WASHINGTON — Obama administration officials, alarmed at doctor shortages, are looking for ways to increase the supply of physicians to meet the needs of an aging population and millions of uninsured people who would gain coverage under legislation championed by the president.

The officials said they were particularly concerned about shortages of primary care providers who are the main source of health care for most Americans.

One proposal — to increase Medicare payments to general practitioners, at the expense of high-paid specialists — has touched off a lobbying fight.

Family doctors and internists are pressing Congress for an increase in their Medicare payments. But medical specialists are lobbying against any change that would cut their reimbursements. Congress, the specialists say, should find additional money to pay for primary care and should not redistribute dollars among doctors — a difficult argument at a time of huge budget deficits.

Some of the proposed solutions, while advancing one of President Obama’s goals, could frustrate others. Increasing the supply of doctors, for example, would increase access to care but could make it more difficult to rein in costs.

The need for more doctors comes up at almost every Congressional hearing and White House forum on health care. “We’re not producing enough primary care physicians,” Mr. Obama said at one forum. “The costs of medical education are so high that people feel that they’ve got to specialize.” New doctors typically owe more than $140,000 in loans when they graduate.

Lawmakers from both parties say the shortage of health care professionals is already having serious consequences. “We don’t have enough doctors in primary care or in any specialty,” said Representative Shelley Berkley, Democrat of Nevada.

Senator Orrin G. Hatch, Republican of Utah, said, “The work force shortage is reaching crisis proportions.”

Even people with insurance have problems finding doctors. Continue reading