Healthcare Matters is an internet television program that explores the intersection of medicine and the law. Host Michael Matray, editor of Medical Liability Monitor, interviews politicians, scholars, and members of the healthcare community on issues such as tort reform, significant malpractice judgments and emerging legal trends in medical professional liability. Our Executive Producer is Erik Leander.

Rep. Roe was a practicing OB-Gyn prior to being elected to Congress in 2009 from Tennessee’s 1st District. Rep. Andy Barr, elected in 2013 from Kentucky’s 6th District, is a former trial attorney. Both are members of the Republican Study Committee (RSC), where they worked with current Secretary of Health and Human Services Tom Price, who has also been a proponent of including medical liability reform in Republican efforts to replace the ACA.

Repealing and replacing the Affordable Care Act (ACA) has been a major goal of Republicans for years. With that goal now in sight, our latest Healthcare Matters episode focuses on whether or not medical liability reform will be a part of any Republican healthcare reform efforts. Join us as we speak with Rep. Phil Roe (R-Tenn) and Rep. Andy Barr (R-Ky), about The American Healthcare Reform Act of 2017 (HR 277), a healthcare reform bill they introduced in January. The bill includes a ‘safe harbor’ provision, which is intended to protect physicians from frivolous medical malpractice lawsuits as long as physician follow specified clinical practice guidelines, and would also move certain kinds of medical malpractice litigation from state courts to federal court. Our interview also covers the question of caps on noneconomic damages, and why they would be difficult to implement at the federal level.

Transcript

Mike Matray: Hello, and welcome to Healthcare Matters – the internet television program that explores the intersection of medicine and the law. I’m your host Mike Matray, editor of Medical Liability Monitor.

The repeal and replacement of the Patient Protection & Affordable Care Act of 2010 — also known as the Affordable Care Act or Obamacare — has been the hot topic in D.C. as well as the healthcare industry since the election of President Donald Trump.

While no consensus bill for replacing the Affordable Care Act exists at the time of this taping, the medical malpractice insurance industry has been anxious to see whether the GOP’s legislation will include medical malpractice tort reform provisions, something not included in President Obama’s signature healthcare law.

Today’s guests on Healthcare Matters — Congressmen Phil Roe and Andy Barr — are here to discuss the American Health Care Reform Act of 2017, which they introduced in January. Both men have been intimately involved in the creation of previous bills that would have repealed and replaced the Affordable Care Act, each of which included a “safe harbor” provision that would shield physicians who follow best clinical practice guidelines against malpractice claims.

Representative Roe — a board-certified obstetrician and gynecologist — is the sponsor of the American Health Care Reform Act, and Representative Barr — a former liability lawyer — co-sponsored the bill as well as helped craft its medical liability reform provisions.

Both Roe and Barr have previously worked with now-Health & Human Services Secretary Tom Price in crafting previous replacement bills that also contained safe harbor tort reforms. Because of Secretary Price’s influence and the fact that he will shepherd any consensus legislation through the House and Senate, it’s likely any medical malpractice reforms will center around creating a safe harbor for physicians practicing within clinical practice guidelines.

Welcome to Healthcare Matters, Congressmen.

Prior to your election to Congress, Rep. Roe was a practicing obstetrician and Rep. Barr was a medical liability defense attorney. Could you briefly share how the medical negligence portion of the American Healthcare Reform Act was informed by your previous professional experience?

Representative Roe: Well, I’m a board-certified OB-GYN, and when I began practice in 1977, my malpractice premiums were $4,000 a year, and it was over $50,000 when I stopped delivering babies.And as I got up here in D.C. and began to work on health care reform, I was asked by the Republican Study Committee to write a Republican alternative to the Affordable Care Act, which I got a group together, a really solid group on my committee, and put this together. And I thought, “Well, it wouldn’t be complete without a malpractice piece” because the defensive medicine that’s practiced in this country is enormous. The amount of testing we do that I believe’s unnecessary simply because… I mean, you go into an emergency room today and you say your belly hurts, you’re gonna come out glowing in the dark. I mean, you’re gonna come out with a CT scan and an ultrasound most likely and a multi-thousand-dollar bill. Did the quality of care go up that much more? My answer to that is, no, it has not.

Representative Barr: The reason why we need this is because defensive medicine is producing overutilization. It’s driving up costs and not just increased medical malpractice premiums but also increased health care costs because of overutilization. The litigation lottery environment that I was exposed to in private practice, both on the plaintiff side and representing hospitals and physicians, was evidence enough to me to know that there’s a whole lot of wasteful expenditures in the administration health care services that are not only unnecessary but not medically indicated, simply for purposes of protecting doctors and hospitals and nurses from frivolous lawsuits.

So we think that the best way to go about this is to provide a safe harbor for those health care providers who adhere to clinical practice and diagnostic guidelines. These are peer-reviewed, evidence-based guidelines. We think the argument to the plaintiffs’ bar and to the patient advocates is…and people who are concerned about actual medical errors, that this would actually raise and standardize the standard of care nationwide. And at the same time, it would have the effect of weeding out frivolous claims early in litigation.

Mike Matray: The hospital/medical professional liability industry has consistently said that noneconomic damage caps are the most effective tort reform for reducing the cost of medical professional liability, and they’ve also been consistently against safe harbor legislation. You removed caps from the 2013 version of the American Health Care Reform Act and added safe harbors, why?

Representative Roe: It’s just a bridge too far, and if we knew we could nail that bridge… We’ve tried it over and over. No one has ever been successful. And in Tennessee, we have $750,000 cap on damages, which I think is going to be ruled unconstitutional when it’s finally worked its way through the court system. So unless it’s in the state constitution, which is what they did in Texas, it’s probably gonna be ruled unconstitutional and be thrown out anyway. And so you get what you can get, and basically, I think this is pushing it as far as we could get it. And this would be a great start.

Representative Barr: So I don’t have a problem with caps, but here’s the reality. This piece of legislation is ineligible for reconciliation under what’s called the “Byrd Rule” in the Senate. And this is kind of technical and it’s inside Senate rules, but it really matters in terms of what is actually achievable. And so there’s certain things we can do in the “repeal and replace” agenda in reconciliation. There’s certain things that Secretary Price can do administratively at HHS. And then there’s a third category of health care reforms, as part of the ACA replace agenda, that need to move through regular order. That means that there are federal law changes that require 60 votes in the Senate. This is one of those.

And so in order for us to have a chance to bring, you know, eight Democrats along, we have to be sensitive to some of the objections or concerns that have been raised in the past, the pretty uniform opposition to caps on noneconomic damages among Democrats. So it’s really an effort to have an innovative form of medical malpractice reform that can attract bipartisan support in the Senate, and we think it would also have the effect of, you know, limiting the defensive medicine, even though there are no caps on damages.

Mike Matray: Representative Barr, can you explain how this legislation satisfies those legislators who support the concept of federalism and state’s rights while still moving many medical liability claims out of the state-based civil court system?

Representative Barr: What we do in this is we address the federalism concern by saying we recognize the tort law and medical malpractice litigation is traditionally within the jurisdiction of state courts. But there is a strong federal interest, as a payer, as a payer, that federal taxpayers have a strong interest in preventing overutilization of health care, lowering costs for the taxpayers, and preventing defensive medicine. And therefore, for any malpractice claim that arises under a federal payer or a federal statute, the defendant should have an elective right of removal to federal court and avail themselves of this safe harbor provision. And so that’s how we get around the federalism issue because we’re dealing with cases where there is a federal interest.

Mike Matray: Is there an ideological barrier to ever getting a federal cap on noneconomic damages? You mentioned how your legislation sidesteps the concerns of federalism and the 10th Amendment, so would it be possible in the future to similarly pass some sort of floor cap on noneconomic damages where states could adjust the cap downward if they like, but there remains a nationwide backstop of say a $500,000 or $750,000?

Representative Roe: It’s 167, or 157, I think it is, and that’s how many lawyers there are in the House and Senate, and the problem is, is getting it past that. You will never get the caps passed here. It’s just not possible. And so what we’ve thought about, Andy and I have talked about was that, “Hey.” He wrote this bill, and I said, “Well, that maybe threads and needle. If we could get enough support from the Conservative attorneys on the Republican side and some bipartisan Democrat support, that we would be able to do this.” If you put caps on, it’s dead. And I can tell you we’ve tried it, and it goes nowhere.

Mike Matray: The medical professional liability industry is concerned with safe harbor legislation because a savvy plaintiff attorney could convince a jury that any deviation from the clinical practice guidelines your bill intends to implement would be malpractice. In essence, it takes the standard of care from local to national.

Representative Roe: If you’re in a Medicare situation right now, you have a national standard, like it or not. And we let those standards be set not by us but by the medical specialties that take care of it. Like, if it’s the American Society of Internal Medicine or the ACOG, in my case, or the American College of Cardiology, neurosurgeons, whatever, they’re the ones, not somebody else that decides what those standards are. And I’ve heard that argument, and I totally agree with that. But this would be what we would do to hopefully help thread the 10th Amendment needle.

Mike Matray: I’d like to thank both Congressmen Roe and Barr for appearing on Healthcare Matters. The potential repeal and replacement of the Affordable Care Act and its effect on the healthcare system is obviously a continuing story and I hope to have both gentlemen on again as legislation moves forward.

Representative Barr: Thanks for having us on.

Representative Roe: Thanks a lot. Bye now.

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