Karen Kidd Sep. 1, 2016, 12:01pm


WASHINGTON (Legal Newsline) -- Litigation reform should go hand-in-hand with healthcare reform, but don't expect any substantive reform of the Affordable Care Act anytime soon, says a congressman from North Carolina.

"You can't take a pig and give it a bath and put perfume on it," Republican U.S. Rep. Robert Pittenger told Legal Newsline. "It's still a pig. We can't try to make over a government-mandated and government-planned, government-arbitered system.

"It needs to be an open, competitive market system. That's what would drive down prices."

Aetna recently announced that in 2017, it will stop offering individual coverage under the Affordable Care Act, also known as Obamacare, in 11 of the 15 states where the company currently participates in state exchanges.

Aetna's chairman and CEO Mark Bertolini said in a press release announcing the decision that the insurance giant came to this decision after sustaining hundreds of millions of dollars in losses because of its participation as a healthcare insurance provider in Obamacare.

The states Aetna is expected to pull out of includes Pittenger's North Carolina, in addition to Arizona, Pennsylvania and Florida, but the company continues to sell plans on state exchanges in Iowa, Delaware, Nebraska and Virginia.

Meanwhile, other healthcare insurance providers have announced decisions to scale back participation in or entirely pull out of state exchanges. Where they plan to remain, substantial premium increases have been announced in many U.S. health insurance exchanges and more are expected to be announced Nov. 1. Questions about what to expect next remain unanswered, Pettinger said.

"And now in North Carolina, we have one provider," Pettinger said. "What's that going to do? And can they, Blue Cross Blue Shield, sustain the losses?"

Pettinger said he could see no other way that the Affordable Care Act could have been implemented that would have provided better results for healthcare consumers.

"The entire approach is faulty," he said.

A better healthcare insurance delivery system would involve recognizing basic market fundamentals and allowing the competitive market to work unimpeded, Pettinger said.

"I'll give you an example," he said. "Look at Lasik surgery. I mean, 10 or 15 years ago, what did it cost? Nine or 10 thousand dollars? Today it costs less than a thousand. Competitive markets drive down prices and improve quality.

"In any service, in any product, in any industry, healthcare included. The very thing that should have been done but wasn't done. We've closed the market instead of opening it up."

He added that litigation reform in the healthcare field would need to be an important component of all that. He said he experienced that firsthand about a decade ago when he was in the North Carolina Senate and litigation reform in healthcare, including caps on uneconomic damages, was approved. The need for litigation reform in healthcare is undoubted, Pettinger said.

"Thirty percent of the tests doctors perform are defensive medicine," he said. "They don't want to be sued. The same with hospitals, the hospitals perform the same type of tests that those doctors are doing."

When doctors and hospitals are sued, they seldom fight, Pettinger said.

"Ninety percent are settled out of court because it's so expensive to be tied up in court for so long with all of these cases," he said. "But you have those who exploit the system. Economic damages are fine, but then you get into these emotional, ethereal damages. That's where you run into the tens of millions of dollars. So much of it is contrived and yet they settle because they need to move on."

The solution to that, he said, would be a cap on noneconomic damages.

"If you had a cap on these damages - and that's what we did in North Carolina, we put a cap on them," he said, "then they can only sue for so much in noneconomic damages. Economic damages, those are real, we can understand those. But not noneconomic damages, those are a different thing. That's where it becomes so punitive and so costly. You put a lid on that, that's going to shut down so many of these high-powered trial lawyers."

Unfortunately, those trial lawyers understand the political game far better than do doctors, Pettinger said.

"The trial lawyers have such an enormous amount of political weight," he said. "Doctors never get involved in politics, they hate politics. Trial lawyers love politics and they put a lot of money into it. The doctors don't get it and they never have gotten it. They've never really been financially engaged. If they ever did, they'd turn the heads of everyone."

Organizations in this Story

North Carolina
601 S College Rd
Wilmington, NC 28403

Aetna Inc.
151 Farmington Ave
Hartford, CT 06105

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