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January 7, 2000


Liability Expansion Not the Answer

As Congress returns shortly and a House-Senate conference committee works on health legislation, they should consider that expanding the liability of health plans and employers won't solve the chief problems in health care: improving the quality of and access to care.

•The liability expansion in the Dingell-Norwood bill only turns loose the plaintiffs' bar.  It does nothing toward quality improvement, and threatens to increase the number of uninsured.  The House-passed bill goes way too far in opening the Pandora's box of litigation.

•As the Urban Institute's Randall Bovbjerg wrote recently in the Los Angeles Times: "What going too far means is allowing trial lawyers to launch any and all lawsuits they can think of against health plans, whether related to patient rights or appeals processes or not.  It means giving the nod to any amount of damages, including punitive awards unrelated to harm caused."

Were the Dingell-Norwood liability provision to become law, it would only add to the culture of blame that already hinders quality improvement.

•Dennis O'Leary of the Joint Commission on Accreditation of Healthcare Organizations notes the need for knowledge and analysis of medical errors.  He says, "But that won't happen unless the caregivers involved feel safe – from blame and punishment – in participating."

•The threat of lawsuits against employers and health plans under Dingell-Norwood also would cause many employers to limit their liability exposure by ceasing to offer employees health benefits.

Congress should look at how other industries have dealt with liability concerns in their error reporting systems.

•The aviation and nuclear power industries, for example, could provide models for how to promote error reporting while limiting liability exposure.

•A key component of developing a system to collect reliable, useful information to improve quality is limiting liability, not expanding it.

The goal should be improving patient care and creating informed consumers.  Enriching trial lawyers doesn't move us toward achieving that goal.




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