Health Care Reform - What Do We Replace Obamacare With if It's Overturned?

With the Prospect that Obamacare May be Overturned,

What Do We Replace it With?

As a retired attorney who specialized in defending personal injury
cases, and who was involved in the defense of numerous medical
malpractice claims, I can say unequivocally that the first and
foremost need is for malpractice tort reform. The majority of medical
malpractice claims, I would estimate over 60%, are frivolous. The
plaintiff's bar will take on virtually any claim against a
doctor/hospital if they feel the patient/plaintiff is sufficiently
sympathetic and the anticipated reward is great enough. They simply
hope to “get the case to a jury” where they can argue for
sympathy for the alleged “victim.” While they may lose two out of three cases, that third case makes it worthwhile to "roll the dice."

Medical malpractice tort reform would involve four steps:

1. Make arbitration mandatory before allowing a lawsuit to be
   filed., with a panel of three arbitrators including at least one
   doctor, with the parties splitting the arbitrator's fees . If
   either party appeals the arbitrators' award by filing a lawsuit,
   they will pay all costs, including attorneys' fees, if the result of
   the lawsuit does not improve their position over the arbitrators'
   decision. This is a modification of the “loser pays” proposal,
   and a system that is currently in use in some cases where there is
   mandatory arbitration.

   
   

2. Do not allow hired experts – use only court-appointed
   experts in both trials and arbitrations. One can hire an “expert”
   in virtually any field to testify to whatever is needed, which is
   why “esperts” are known as “hired guns”, and/or “whores”
   in the legal profession.

   
   

3. Establish regional boards to determine the “standard of
   care” in each medical specialty, especially regarding the
   diagnostic tests that are called for in a particular situation. In
   recent studies, more than 90 percent of physicians reported
   practicing positive defensive medicine in the past 12 months;
   unnecessary imaging tests accounted for 43 percent of these actions.
   More than 92 percent of surgeons reported ordering unnecessary tests
   to protect themselves.
   http://www.aaos.org/news/aaosnow/dec10/advocacy2.asp
   In another study it was estimated that 35% of all diagnostic tests
   were performed for the physician's protection against possible
   malpractice actions. This step, coupled with step 2, should greatly
   reduce the amount of defensive medicine that doctors feel they need
   to protect themselves.

   
   

4. Limit awards to actual medical costs incurred and financial
   losses such as lost income. Limit awards for “general damages”
   for pain and suffering and do not allow claims for punitive damages
   except in the most egregious cases, if at all.

   
   

The foregoing steps will have three effects – first they should
greatly reduce the cost of medical malpractice insurance by reducing
the amounts of awards; second, they should reduce the amount of
defensive medicine being practiced; finally, they should greatly
reduce the cost of litigation and the filing of frivolous lawsuits.
It should be noted that these tort reforms should be done at the
state level – perhaps a “Model Medical Malpractice Reform Act”
could be drafted and recommended to the states for adoption.

Next would be Health Care Insurance reform, which could be done at
the federal level for insurance companies that offer insurance
“interstate,” giving Congress authority to regulate under the
commerce clause.

First, all states should allow and encourage the greatest amount
of competition possible. Second, insurance companies selling
policies interstate should be allowed to offer all levels of health
care coverage, from bare-bones to the so-called “Cadillac” plans,
any level of coverage that the customer would bargain for. For
example, insurance companies should not be forced to take on insureds
with “pre-existing” conditions. That isn't insurance, that's
charity, simply shifting the cost for one patient's treatment to the
other insureds. They also should not be required to cover “children”
until they are 26 years old, unless that is coverage the insured
bargains for. A “bare-bones” policy would include higher
deductibles and co-pays, and provide for “catastrophic” coverage
for serious conditions, and should be much more affordable than an
all-inclusive policy. True competition in health insurance with
fewer government mandates should greatly reduce the cost.

One way to handle the problem of “pre-existing conditions” is
to create a pool (at the state level), similar to the “assigned
risk” pools for automobile policies, where all insurance companies
doing business in the state could be “assigned” individuals with
pre-existing conditions on a pro-rata basis. A child born with a
condition would come under the parents' policy unless there is a
specific exclusion – something the insured could bargain for if
they are beyond child-bearing age and wish to save on their premiums.

I am certain there are many other areas to be considered, but I
believe that reform along the lines I've suggested would result in
significant savings and a lowering of the costs of health care as
well as the cost of health care insurance, with a minimum of
intrusion on individual rights.

I welcome any comments and suggestions!