Wayne M. Willoughby Medical Malpractice Law Blog on Lawyers.com

Some in Congress again push to shelter negligent corporations and others at the expense of injured patients.

It’s back!  The so-called Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2011 (H.R. 5) is the same bill that was passed by the House of Representatives in 2005.  This bill would shield negligent hospital corporations, health insurance companies, pharmaceutical companies, corporate nursing homes and others from accountability for negligent conduct.  In fact, the bill is so expansively drafted that it would even safeguard doctors who sexually abuse patients.

In a new spin on the old battle tactics, proponents of H.R. 5 this time around claim the bill is necessary to create jobs and grow the economy.  In fact, eliminating accountability for careless conduct is a disincentive to both job growth and public safety.  When hospital corporations, nursing homes, and drug companies cannot be held fully accountable for their misconduct, there is no financial incentive for them to reduce the medical errors that kill 98,000 patients every year in America.  

Proponents of the bill also rely on the old canard that H.R. 5 is necessary to control the costs of so-called defensive medicine.  The only evidence of defensive medicine, however, comes from surveys conducted of health care providers who claim to have ordered tests and procedures out of an irrational fear of being sued.  These surveys are easily dismissed.   

The same doctors who responded that they engage in defensive medicine certainly bill their patients’ insurance companies, Medicare and Medicaid for the services, tests and procedures they rendered.  Yet, billing for unnecessary medical care is a crime. It is called insurance fraud or Medicare fraud or Medicaid fraud.  Thus, were the survey results to be believed, the medical profession is engaged in wholesale insurance fraud!!!

No reasonable person could truly believe that a significant number of healthcare providers would risk their licenses and going to jail by engaging in defensive medicine – i.e. ordering unnecessary medical care for patients.

Moreover, good doctors know what is best for their patients and order tests and procedures for that reason, and there is no evidence that patients feel over tested.  This is particularly true when a test or procedure uncovers a serious condition at a point in time when treatment will be most effective and least invasive. Defensive medicine simply is an exaggerated problem.  The real problem is patient safety.

Accordingly, H.R. 5 cannot be justified on the bases of job creation and cost reductions.  In addition, breathtaking scope of the bill demonstrates that jobs and costs are merely a subterfuge.  If truly designed to deal with defensive medicine and job creation, there would be no point in providing the broad protection offered under H.R. 5 to the manufacturers of bad drugs, the corporate operators of nursing homes, HMO’s  and health insurance companies that refuse to pay for needed medical care.

H.R. 5 is simply a wrongheaded attempt to shield corporate and other wrongdoers from accountability for injuring innocent people.  With over 98,000 Americans losing their lives each year due to medical mistakes, Congress should work to protect patients and not the insurance, pharmaceutical and the healthcare industries.

Wayne M. Willoughby is Public Information Chair and Legislative Committee Chair of the Maryland Association for Justice, formerly the Maryland Trial Lawyers Association