Something We Can Agree On: Passage of Medicare Improvement Act Is "Good Medicine" for Everyone

Last night, the United States Senate approved the Medicare Improvement Act for Patients and Providers (H.R. 6331) by a vote of 69 to 30. In an important demonstration of bipartisan support for the measure, 18 Republican Senators joined with Democratic Senators in voting to approve the legislation. The House of Representatives had previously approved the legislation by a vote of 355 to 59. The legislation now moves to the desk of President Bush, who has said that he "strongly opposes" the bill. The good news is that the bill will likely be enacted even if President Bush exercises his veto power because the necessary majorities in both houses of Congress have pledged their support.

If enacted, H.R. 6331 will reverse the 10.6 percent cut in Medicare payments to healthcare providers became effective July 1, 2008, as well as the projected 5.4 percent cut forecast for 2009. It will also continue the 0.5 percent increase in payments for the remainder of 2008, and physicians would receive an additional 1.1
percent increase over 2008 levels in 2009.

Why is this important to consumers? Medicare pays hospitals, physicians, and other healthcare providers, for medical treatment needed by elderly and disabled patients, as well as military families and retirees that do not have private insurance to pay for such treatment. When Medicare reduces payments for legitimate claims, healthcare providers are forced to look elsewhere to cover the costs of providing medical treatment to these patients. Many private insurers have tied their reimbursement rate to the rates paid by Medicare, thus even private insurance pays less when Medicare pays less.

Additionally, hospitals and emergency room physicians are required to treat patients in hospital emergency rooms under EMTALA regardless of whether such patients have insurance. Thus hospitals/doctors are required to care for many patients who cannot pay for their emergency room treatment, and hospitals/doctors may not receive adequate reimbursement from Medicare if Medicare reduces payments for such care. The result is that patients with private insurance, and those that are "self-pay," wind up paying more for medical care in order to subsidize those patients whose claims are paid by Medicare, and those patients who are treated under EMTALA without any reimbursement to the hospital and/or physician.

Hospitals, doctors, and other healthcare providers have used this dilemma to justify caps on damages in medical malpractice lawsuits. The solution to ensuring that medical care is provided to those that need it is not limiting the damages available to victims of medical malpractice, however. While it is true that hospitals and doctors must cover their costs, including the cost of paying for medical malpractice insurance, it is unfair to shift the burden of loss to victims of medical malpractice merely because Medicare does not adequately reimburse hospitals/physicians, or because hospitals/physicians are required to treat patients under EMTALA without reimbursement.

It is unfortunate that the healthcare industry and the legal profession have not worked more closely together to resolve this problem. It seems that both have a desire to serve their clients, and yet neither is willing to work toward a solution that addresses both the economic needs of the healthcare industry, and the right to fair compensation for medical malpractice victims. One must wonder what might be possible if lawyers were willing to acknowledge that healthcare providers are entitled to be fairly compensated for the medical treatment of patients, and if healthcare providers were willing to acknowledge that patients are entitled to be fairly compensated for their pain, suffering, and disability, when a healthcare provider is medically negligent.

The truth is that neither healthcare providers, nor medical malpractice victims, should be required to bear the burden that we, as a society, place upon ourselves in ensuring that all Americans receive adequate medical treatment. The answer to this problem lies in a solution that provides adequate reimbursement to hospitals and physicians, while preserving the fundamental right of American citizens to seek redress in our courts for their injuries. The passage of H.R. 6331 is only one component of this solution. We need to look next toward increasing the reimbursement rates for Medicare, Medicaid, and other government funded insurance programs, as well as the reimbursement rate for private insurers, in an amount sufficient to cover the cost of medical malpractice insurance.

If we are unwilling, or unable, to pay for the costs associated with ensuring adequate medical care for all Americans, including the cost of ensuring adequate victim compensation, we face the risk of creating a disparity between the "haves" and the "have nots," e.g. those that have private insurance, and those that do not. It is unfair to require those who are able to afford private insurance to subsidize those who cannot by paying more for insurance and/or relinquishing their right to compensation for their injuries. Likewise, it is unfair to require hospitals and physicians to cover the losses they sustain when they underpaid by Medicare for a legitimate claim, or when they are not paid for the cost of treating a patient they are required to treat under EMTALA.

Should we choose not to properly fund medical treatment for all Americans, including paying for the cost of medical malpractice insurance, we will have to face, as a nation, the difficult decision of whether we are willing to require the "haves" to subsidize the "have nots" by paying more for medical care and/or giving up their right to fair compensation through limitations on medical malpractice damages. Alternatively, we will have to decide whether we are willing to tolerate a disparity between the "haves" and the "have nots," by affording greater protection to those who can afford to pay for it. Burying our heads in the sand, and hoping that the problem will just go away, is not an option.