The antidote to demagoguery

When it comes to health care policy, that would be Health Affairs, the new issue of which has just come out. Unfortunately, however, politicians are entitled to their own facts after all, and no amount of truth is likely to have much of an impact on our political discourse about health care. It doesn't have to be that way, reporters could be industrious, responsible and courageous, and hold politicians accountable for the truth, but as a class they are none of the above. Still, we lonely few soldier on.

There is a lot to chew on in the new issue, but today I'll just talk about malpractice litigation. Republicans have often claimed, believe it or not, that malpractice premiums and "defensive medicine" -- overuse of tests and procedures by physicians afraid of being sued -- largely account for the high cost of health care in the U.S., and that putting hard caps on awards for non-economic losses -- pain and suffering, basically -- and punitive damages will go a long way toward restraining costs.

It's actually not new news, but Michelle Mello and colleagues (including Atul Gawande of whom you have likely heard) calculate that these factors add about 2.5% to total health care costs in the U.S. More than nothing, but largely trivial in explaining why we spend twice as much as comparable nations. At the same time, they point out that there are perfectly good reasons for malpractice awards:

The system makes injured patients whole by providing compensation; it provides other forms of "corrective justice" for injured persons, which produces psychological benefits; and it reduces future injuries by signaling to health care providers that they will suffer sanctions if they practice negligently and cause injury.

They claim these benefits cannot be measured (I dispute that), but in any case that 2.5% of health care costs doesn't just go up the chimney. People who are injured do deserve compensation, and the negligent practice of medicine does need to be discouraged. But: malpractice litigation is a very crude instrument for achieving these ends. Most people who are injured by medical negligence in fact never sue, and most people who are injured by medical error don't even have grounds for a lawsuit because most errors are not negligent. Furthermore the outcome of litigation may be disputed in many instances as it depends on the quality of the counsel on each side, dueling expert testimony, various factors that tug on jurors' emotions, and the judgment of jurors who lack relevant expertise guided by instructions from judges who are often equally at sea.

There is no reason why compensation for injured persons has to be tied in any way to sanctions for negligent or incompetent health care providers. We ought simply to separate these goals.

As for compensation, universal, comprehensive health care would go a long way. Mello et al estimate that 55% of malpractice awards are for economic losses, a good chunk of which consists of future medical costs, particularly for obstetric injuries to infants. These costs should already be paid for, without regard to why they exist. A decent disability and survivors' insurance system would also help. But there would certainly be the need for additional compensation in some cases, which could be paid out of a common pool without regard to anyone's culpability. Without huge legal fees, there would be more money for people in need.

As for discouraging negligence, we need accountability through a dedicated system of tribunals which are not about making huge damage awards, but about disciplining the provider work force. I won't try to design the thing here, but the basic idea is simple enough. They should not consist entirely of physicians (since we know they always stick together) and there must be some degree of managed transparency that protects the rights and reputation of the non-culpable. Sanctions could range from a reprimand with requirements for maintaining licensure; required retraining; suspension of licensure with requirements for reinstatement; and revocation of licensure. Yes, the accused would hire lawyers but they would be paid by the hour, and wouldn't be looking to scoop up millions in contingency fees.

This is something the AMA and patient advocates might very well agree on. Trial lawyers, however, won't like it one bit, and they give a lot of money to political candidates. It so happens that they mostly give to candidates I like, so I demand major cred for being fair and balanced here. But you know, it's not going to happen.