Curt Levey of the conservative Washington-based Committee for Justice has an opinion piece in The Wall Street Journal today warning of the flood of litigation that will immediately follow any passage of health care reform.
He begins by noting President Barack Obama’s call for a bipartisan meeting to discuss health reform, asking Republicans to bring along their ideas to lower health care costs.
“If he is sincere, the president should consider how the health-care bills his party has on the table right now will drive up the legal costs that are draining the health-care system we currently have,” Levey wrote. Passage of a bill, he said, will mean “more money wasted on attorney fees, physicians focused on legal rather than medical considerations, and growing delays in our already-overburdened courts.”
He then walks through a litany of court battles, including those over the constitutionality of the bill and definition of “preventive services.”
All of these lawsuits, he concludes, will end in “delays in patient care caused by the federal bureaucracy and an overburdened court system.”
We think he is more or less correct about the lawsuits — the overly-litigious will always find a way to sue, no matter how a bill is written (and certainly this bill would be a doozy). But that’s true with almost any major law that’s passed, and we don’t usually stop passing laws out of fear of the lawsuits. Addressing potential litigation issues prior to passage is prudent, but ending legislation for fear of potential litigation would be quite short-sighted.
Further, Levey fails to follow through on his early premise that doctors “will be focused on legal rather than medical considerations,” as the potential lawsuits he discusses are all against either the government or insurance companies. Yes, suits against insurance companies take some physicians’ time, but none of the scenarios he mentions indicate a huge spike in malpractice suits, which is the type of litigation doctors truly fear.
Bottom line: litigation will occur, but lawsuits are short-term byproducts of what is meant to address a long-term problem. What he is really pushing for has more to do with tort reform and less about reworking the health care industry.
As we said, there are merits to examining what potential litigation will be and streamlining legislation to address such issues. That said, this sentence of Levey’s is an example of how his “beware the litigation” essay is more fear-mongering than true criticism: “The bills single out smoking as a justification for higher insurance premiums, potentially raising the constitutional issue of how far federal bureaucrats enforcing the new premium rules can go in determining whether you smoke in your home.”
Levey’s full WSJ editorial is here.
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