Let’s Just Have a Bud Lite and Talk…

H.R. 3372: An Innovative Proposal on How to Handle Medical Malpractice Litigation
By Dr. William Harvey, M.D.
America’s Right

On July 29, Representative Tom Price (Republican, GA, 6th District) introduces a remarkably short (13 pages!) yet insightful bill to create a strategy for improving health care and reducing the risk, cost and time spent in medical malpractice. There are no co-sponsors yet, and the Bill has been assigned to the House Ways and Means Committee as well as the Energy and Commerce Committee. The short title is the “Health Care OverUse Reform Today Act (HealthCOURT Act) of 2009”.

In the interest of transparency, I don’t live in Georgia, I’ve never met Mr. Price, and to be honest, I know very little else about him. However, reading his words and the underlying ideas, I really like the way he thinks.

This bill addresses three inter-related issues to create a smoothly functioning, logical, efficient system for dealing with the underlying issues in most medical litigation:
• To establish Medicare performance-based quality measures (Section 2);
• To establish an affirmative defense in medical malpractice actions based on compliance with best practices guidelines (Section 3); and
• To provide grants to States for administrative health care tribunals (Section 4).

This bill isn’t perfect, and it does have some items that will be a hard sell for AARP and many liberal organizations and legislators, but it does provide a solid basis for discussion. Let’s take it apart and see where the good, the bad and the ugly will be.

To establish Medicare performance-based quality measures
There’s a reason why we speak about the “art of medical practice” and not only the “science of medical practice”. Every one of us is an individual; our bodies have evolved differently, we react to drugs differently, and we have different mixes of diseases (and treatments). Each on of us constitutes a unique medical situation. It takes years of experience and learning to know when you can ignore a factor and when it’s critical to the outcome. Still, in many cases, the care of many conditions can be simplified to a set of guidelines.

You may think that each disease/disorder/complication has been studied to death (sorry for that choice of words) and that all those medical books and journals basically say “if the patient has this, do that.” Not so fast!

First, we have many doctors who learned from their mentors how to treat a condition, without the mentors having really done the comparison to other potential treatments to see which was best; this is the medical equivalent of “I do it this way because my grandma taught me to do it this way … and she learned from her grandma.” What we get is a variety of ways of treating the same condition. If we look at outcomes we can often determine that some methods clearly work better than others.

If you remember from a previous post, when we look at particular treatments for a given condition, in the setting of real people (with all their complications) in the real world, we call that “comparative effectiveness.” If we take the information we have from all the research we’ve done (randomized controlled trials; case studies; registries; etc.) and let a group of experts sift through it, we can get recommendations based on performance and on the quality of the results (outcomes) on what the best course of action is in a certain situation. These recommendations are guidelines and they are produced by a number of professional and scientific organizations.
If you’ve been unlucky enough to have a heart attack, you will notice that the EMTs who come in the ambulance have a standard routine they use; when you’re taken into the ER, the ER staff likewise have a standard set of routines. If you’ve had hip or knee replacement surgery, the same thing is true: your doctor had a standard routine for when to start blood thinners and how long to continue them. All of these are “guidelines” and following them is called practicing “evidence-based medicine.”

What Section 2 does is establish the basis for creating the standards “guidelines” that will be used to direct performance-based (“evidence based”) medicine. It requires the HHS Secretaryto find such standards and to make certain they are widely distributed.

Now, if you remember the discussion of the HIT part of the Stimulus Package, you’ll say, “Wait a minute, the Office of the National Coordinator of HIT is supposed to do that, so what’s the big deal?” The big deal is that in the Stimulus package, the government and its committees and administrators, working in with no public exposure or input, generate the guidance that the ONCHIT distributes. The process is as transparent and participatory as developing a new section of the IRS code.

In this bill, on the other hand, the development of the standards is done independently of the government, by medical and professional societies, with participation broadly based around the nation and, in many cases, internationally. When a standard has been developed by such a recognized independent body, the Secretary may promulgate it … a breath of fresh air.
This initially applies to diseases and procedures of interest to the Medicare population, but if the system functions well it could be easily expanded to cover common conditions in non-Medicare populations.

To establish an affirmative defense in medical malpractice actions based on compliance with best practices guidelines
Jeff (or a kind, legally-trained reader) will have to correct me here, but our medical malpractice system is based on tort law. This means that one party believes that a legal injury has occurred in a non-contractual relationship. In short, someone had to be “at fault” for what happened to the other party. A tremendous amount of time and money is spent in resolving the key questions of fault and extent of fault.

Section 3 of the HealthCourt Act attempts to simplify this process and reduce costs. First, once Best Practice Guidelines have been issued, if a physician has followed the Guidelines, that will constitute an affirmative defense against a malpractice action. In simple language, if you as a physician follow what the medical community has identified as the best way to handle a particular condition or disease, you have a positive defense. The part of this Section that people will have trouble with is the limitation (amounts not specified) on non-economic (“pain and suffering”) and punitive damages. Pages 4 and 5 cover this and are in reasonably clear language (at least for a Congressional Bill). Remember that if a physician has been negligent or has not followed the Practice Guidelines, none of the restrictions discussed above apply.

When you remember that administrative fees (to insurance companies and to attorneys) and damages amount to about $30 billion a year, any simplification of this process will remove a thorn in the relationship between doctors and their patients. The availability of Best Practice Guidelines will mean that a physician and patient can have a very clear and detailed discussion of what the patient’s treatment should be … and why.

To provide grants to States for administrative health care tribunals
When you read that title you imagine a dark chamber with secret meetings; Rep. Price should have come up with a better name. This Section actually establishes a hierarchical series of panels, appeal bodies, and then a transition to the Court system to handle allegations. What is particularly impressive is that the entire process is established and runs under the jurisdiction of the State governments, not the Federal government. Of equal importance is the way the make-up of the panels is described. These are heavily based on independent, specialist, expert healthcare practitioners (MDs, nurses, etc.) – individuals who can sort out the issues that are usually buried in today’s system by “expert witnesses” who contradict one another and leave a jury more confused than educated.

The system almost has the appearance of a mediation panel to handle the first few levels of the process. As much as possible, the intent is to provide a non-confrontational, objective process and evaluation. Clearly, in the real world, not all cases will be resolved in the first 1-2 levels, so there is a transition to the Courts. However, it is clear that the hope here is that most issues will be resolved early in the process.

As we’ve noted previously, healthcare reform without malpractice litigation reform is unlikely to succeed. This is the first Bill that addresses the litigation reform AND provides a better way than any other bill presented so far to provide practice standards. It also keeps the definition of standards of practice with the professional bodies involved (not the Federal Government) and keeps the litigation process at the State level (and not the Federal level).

Please read this bill … and if you like it, bring it to the attention of your Congressmen. It needs all the publicity and help it can get.

William Harvey is a physician with extensive experience in drug research and development. He began as an academic researcher but has been a pharmaceutical executive in the global development arena for almost two decades. His current position involves the strategic use of comparative effectiveness research to speed drug development and to educate healthcare stakeholders: government, payors, prescribers, and patients. He lives in the greater Philadelphia area.



  1. Anonymous says:

    The link in this post goes to HR 337 instead of HR 3372.

  2. Gail B says:

    Dr. Harvey, Jeff has done an interview with Dr. Price before.

    Let me just put it this way: If you lived in GA, you would want to be in Representative Lynn A. Westmoreland's district (as I do) or in Dr. Tom Price's district!

    I'm so gun shy of ANY bill related to healthcare that I'd be afraid to be for ANY BILL that the contemporary liberal Democrats could get into and gain any more control over our lives than they have already gotten by overreaching. (I'm really tired, otherwise I'd work on that sentence a bit.)

    If the Socialists were at least honest, instead of lying every time they open their mouths, it would be somewhat different.

    And if they weren't cramming things down our throats faster than the speed of light, it would be a lot less stressful.

    If they weren't so steadfast in their efforts to gain control of every aspect of our lives, maybe I wouldn't be so stressed.

    If, if, if!

  3. Bodenzee says:

    There is no question that excessive and inappropriate litigation is directed against physicians. There needs to be a reduction of this. However, I can not disagree strongly enough with the idea that following Best Practice Guidelines should constitute an affirmative defense. The physicians would like this, but it’s self serving. Were this alone to be adequate the Best Practice Guidelines could be implemented by a robot. They can't. Technique, experience, judgement and knowledge all enter into correct, optimum treatment.

    I have seen many really competent physicians. I've also known some really bad ones.

    It never ceases to amaze me how many physicians are over whelmed by modern equipment and instrumentation. I recently injured my eye and was sent by my GP to the emergency room of the largest hospital in my state because he was not equipped to treat me. Imagine my dismay when after 20 minutes of his “trying everything” I had to teach the physician trying to treat me there how to operate a slit lamp microscope. He was trying to do the right thing (Best Practice Guidelines). He had the correct equipment. He didn’t know how to operate the equipment. He must have anchored his class but he was licensed to practice medicine.

  4. Robert says:

    This bill may be on the right track, but it could be improved.

    First, it assumes that "health courts" composed of independent, specialist, expert healthcare practitioners (MDs, nurses, etc.) – individuals who can sort out the issues" would not become, in effect, protection boards for health care practitioners. State licensing boards are generally composed of the professionals regulated and in most states they do more to protect their professions than they do to protect the public.

    Second, it will be extremely difficult to get agreement on best practices. Claims will be made that what is supposed to be best isn't. If a drug treatment is said to be best rather than surgery, for example, surgeons will not agree. This has already happened in relation to standards for back problems.

    Third, this system will likely increase costs rather than reduce them because the majority of malpractice is now not compensated. The system might well reduce insurers overhead and legal costs, but if it works fairly it will substantially increase payments because many more people will be compensated for their injuries.

    The real solution to malpractice costs is to reduce malpractice itself. From one to two percent of physicians, many of whom have multiple malpractice payments in their records and have never had any action taken against them by a state licensing board [see point 1], are responsible for over half of all the dollars paid out for malpractice. If action were taken to revoke the licenses or restrict the practices of these relatively few physicians, we could reduce malpractice costs and protect the public from their malpractice.

  5. SallyW says:

    You can go into Open Congress and watch the progress of the bill and vote if you're for or against it:


    Thanx for the head's up on this bill. I've said all along if they started with the abused malpractice laws putting our doctors out of business it would solve half of the "unaffordable care" issues.
    If/When you watch tv every other commercial is a law firm telling you you're entitled to sue for umpteen different medical reasons (mesothelioma — never knew what that was before, they make you say it in your sleep). The other half of the commercials are for drugs. Drugs to fight depression, erectile dysfunction ,for the pain of fibromyalgia, joint repair (arthritis), erectile dysfunction, sleeping disorders, vaccinations for cervical cancer, allergies, erectile dysfunction, magic pills to lose weight and enhance sexual desires, and of course erectile dysfunction.

    UCLA did a study and published it in the Annals of Family Medicine (1/07).
    "The conclusion of the study states that despite the claims that tv ads play an educational role, they contain limited information about causes and symptoms of their target illnesses, their prevalence and risk factors. They also show people that have "lost control over their social, emotional or physical lives without the medication; and they minimize the value of health promotion through lifestyle changes. The ads have limited educational value and may oversell the benefits of drugs in ways that might conflict with promoting population health."

    I don't think we need any more government control over our minds or our health care.

  6. Anonymous says:

    everyone, i realize this is off topic but for those who are not yet aware i thought i might insert this bit of news from wnd.com::

    it appears proof of obama's KENYAN BIRTH has surfaced.

  7. Anonymous says:

    Didn't want any of you to miss this (also reported on wnd.com:


  8. Anonymous says:

    Dr. Tom Price is my rep and I think I have one of the best in the country. That said, I'm in agreement with some of the concerns posted here. When you look at the tenor of comments though, they all carry a theme — that people are self-serving and can't be trusted.

    The root of the problem, as always, stems from removing God from our society. I'm not talking about the need for everyone to be Christian but to live by Christian-Judeo ethics. Without self-governed people, we find untrustworthy folks looking to milk the system for themselves. We then strive to write new laws to root out the siphoners. This ends up hurting the honest people because, in the end, our freedoms are curtailed while the dishonest find yet another way to circumvent law.

    Our society cannot survive when trust is no more. We are almost there.

  9. Ian Thorpe says:

    " To establish Medicare performance-based quality measures "

    William, the sentence I have quoted sums up the great pitfall of a centralised system of healthcare management. The UK Labour Party used almost the same phrase in introducing a system of targets and perfpormance based budgetary incentives and penalties.

    Inevitably, the bureaucratic mindset being what it is, the managers of various units within the National Health Service became obsessed with gatering data, meauring performance and ensuring targets were hit to the detriment of healthcare. The consequence was that a system that was chaotic and bumbling from a business point of view but delivered a broadly good standard of care became a bureaucratic nightmare in which doctors and nurses were spending more time filling in forms and attending meetings than was spent in dealing with patients.

    Performance measurements are worthless because as you say we are all individuals. In one person's perception the system may fail because they expected 5 start hotel quality food and service. In somebod else's (mine for example) a person migh understand the difficulties of running a large hospital with a very diverse patient population and overlook certain problems because after nine months in hospital, a month in intensive care he emerged with mind if not body intact (I had a masive brain haemorrhage)

    The road taken by the Labour gvernment since 1997 is one that sould not be followed in any circumstances uless you want to employ doctirs to do clerical work.

  10. Claudia says:

    Hello all:

    GO TO PLAINSRADIO.COM and look on the blog page and you will see a loat of talk about a NEEWLY RELEASED KENYAN BC that sure looks real to me, and I am a Document Researcher by profession, I have looked at the posted copy of WND and ScribD and it has book and page numbers that reference actual documents in an archive, and the date and places of birth for Mom and Dad are there, and the Cert # and Birth # are seemingly authentic. Orly Tiatz and Alan Keyes are putting it into COURT MOTION FOR DISCOVERY AND AUTHENTICATION. Oh, and Leo has a scareenshot of it on his site also under the Taranto comments page and he is watching it.

  11. tanarg says:
  12. Gail B says:

    We may not have to worry about healthcare yet.

    Want to see a photograph of a certified copy of Obama/Soetoro's KENYAN birth registration?



    Taitz has jumped all over this with a lawsuit to have it ordered verified. She's added it to the class action suit on behalf of the military in Florida.

    Pack up Barry–it's time to go home, and take your thugs with you.

  13. Bodenzee says:

    While Orly works through the courts to obtain proper verification can I expect that Obama's supporters are already on their way to Kenya to assist them as they "declutter" their files of un-needed birth records?

  14. Rix says:

    While Rep. Price's initiative is a welcomed improvement when compared to the organized disaster that our beloved Squatter-in-Chief plans to bestow upon the nation, it has flaws of its own. Some of them were correctlypointed out by Robert but there is another one that I'd like to mention.

    "Best practice guidelines" are a death spell for all patient cases the don't fit the standard symptom picture. They are essentially an equalizer measure that molds doctors, good or bad, into well-oiled medical machines that routinely help 95% of patients and turn the other 5% into "acceptable risk" cases. There will be no innovations, no experimental treatments and no Dr. Gregory House to save the day.

  15. Gail B says:

    I've been digging for more developments re the Kenyan document and have a sinking feeling that it is also a hoax because of the date (Feb. 1964) and the fact that Kenya did not become a Republic until Dec. 1964.

    Received an email from JB Williams in which he told me, "Orly is allegedly on a plane to England where the necessary records to authenticate the document are allegedly kept."

    I just wish I knew the real name of the man sitting at the Resolute Desk. Is it Obama or Soetoro? If you have the answer, can you prove it? NO!

    Here's a video of Tom Price re: healthcare–


    Do you ever get the feeling that the Congressional O-minions are not looking forward to their summer recess? Rep. David Scott-GA had a bad day at his town hall meeting on Saturday!

    "It's a beautiful day in the neighborhood."

  16. Anonymous says:

    Thanks for your hard work and thoughtful, factual contributions to AR, Dr. Harvey. I know I really appreciate getting quality info in these uncertain times.


  17. Anonymous says:

    I'm cautiously optimistic about the latest birth certificate. If it's a hoax, it will quickly be debunked via those reference numbers. But it at least looks a lot more convincing than that piece of garbage that the Obama crowd posted several months ago.

    Some Obama-apologist pointed out an interesting thing on a discussion board last night. There is a serial number (?) at the top of it: 47,044. He believed the number is a clue. 47 represents Barry's age, 0 stands for the "O" in Obama, and 44 is for the 44th president.

    Like I said, cautiously optimistic.


  18. NO REAL LEADER says:

    Right on Gail. Tho the thought of Biden, or quite possibly Pelosi filling in scares the CRAP outta me.

  19. OBAMA THE LIAR says:

    WASHINGTON – Two of President Barack Obama's economic heavyweights said middle-class taxes might have to go up to pare budget deficits or to pay for the proposed overhaul of the nation's health care system.
    The tough talk from Treasury Secretary Timothy Geithner and National Economic Council Director Lawrence Summers on Sunday capped a week that brought rare good news for the economy: The worst recession in the United States since World War II could be on the verge of ending. Even so, officials appeared willing to extend unemployment benefits.
    Geithner and Summers both sidestepped questions on Obama's intentions about taxes. Geithner said the White House was not ready to rule out a tax hike to reduce the federal deficit; Summers said Obama's proposed health care overhaul needs funding from somewhere.

  20. BEER AND NUTS (HIM) says:

    Hey Barry, let's sit around the Rose Garden, eat some pretzels, drink some brews, and go over both our birth certificates.


    Obama, a one term president, at most.

    verification word: worsen
    That sums this dude up

  22. Anonymous says:

    This could, just possibly, turn into another well run government program with only the welfare of the american people at the heart of it's agenda (SIC).

  23. Anonymous says:

    According to African History Kenya actually became a Republic Dec. 12, 1963. But it seems some info stating that date has now been "flagged for removal". How shocking!!! LOL


  24. Gail B says:

    They call December 12, 1963, Independence Day, but they were not a republic until 1964. (Unless I'm mistaken.)

    Kenya – Independence
    December 12, 1963: : Kenyan independence day.

    1964: The Republic of Kenya (Jamhuri ya Kenya) is formed with Kenyatta as president and Oginga Odinga as vice president. The party KADU dissolves and integrates with KANU. The government is without opposition.

  25. Tilli says:

    Havig breakfast with Tom in a few weeks.

  26. JUST WONDERING says:

    Who is Tom?

  27. Showtime says:

    This is just a test.

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