11.06.09

Can Health Reform Include Malpractice Reform? Sure, But Which Reforms Can Generate Political Agreement?

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With the exception of the ludicrous death panel accusations, it’s hard to find an area of health policy that is subject to more demagoguery than the ongoing debate about medical liability. The level of distortion and the amount of misinformation (i.e., outright falsehoods) has all but obliterated any chance for a reasoned debate. In an earlier post, I characterized the debate over repealing the McCarran-Ferguson Act as a sideshow. In contrast, fixing the liability system is a serious and important policy matter.

As Tim Jost rightly notes in his recent posting, the current medical liability system serves none of its primary functions of compensating injured patients, deterring substandard medical care, and improving quality of care. Perhaps we can do better. But nothing in the debate over liability reform for the past twenty years suggests that we will.

One of the troubling aspects of the medical liability policy debate is the deliberate misuse or nonuse of serious empirical scholarship. Tim’s summary of what we know is largely supported by years of high quality research. Unlike other areas of health policy research where ambiguities impair the ability to draw sound policy conclusions, medical liability research suggests some reasonably clear policy directions. Despite numerous cogent summaries of that research (lengthy list of citations omitted!), the research has had a negligible influence on actual policy.

An obvious reason for not observing the research being translated into better policy is that medical liability is an inherently polarizing topic. Neither side particularly wants to compromise, and, equally important, neither side trusts the other’s motives. A second reason is that research almost never provides an unassailable conclusion. In a polarized policy and political environment, ideologues will select any shred of evidence to support a position, regardless of the source. As a result, sound empirical research competes with what Peter Huber coined “junk science” in a different context. In this instance, it’s the conflict between actual science and non-science (i.e., policy briefs and assertions lacking empirical support).

Take, for instance, the debate over defensive medicine. The empirical research demonstrates very clearly that defensive medicine is a small (though, perhaps, non-trivial) driver of health care costs. That hasn’t stopped groups like Common Good from claiming that defensive medicine constitutes 25% of overall health care costs. Tort reform proponents then use this guestimate to support tort reforms, such as health courts, likely to limit compensation to injured patients. They also claim, with no supporting evidence, that practice patterns will change once tort reforms are enacted. This is an empirical question that studies of tort reform in Michigan and Texas (where, as Tim notes, it’s hard to find an attorney willing to take a medical liability case) could answer.

Academics are sometimes able to compete with well-funded lobbyists and advocacy organizations to influence policy. For example, several tobacco control researchers, working closely with advocacy organizations, have clearly influenced policy at local, state, and national levels. But it’s very time-consuming.

The Obama administration is funding a series of medical liability demonstration projects. Maybe this round of research will generate more agreement on which policy measures to implement. I’m dubious, though I fully support the effort. To Tim’s question, can the current health insurance reform include medical liability reforms, the answer is sure, if we had even 80% agreement on what those reforms should entail. I’m just not convinced that we’ve made much progress in resolving this debate over the past 30 years, despite the outpouring of research and policy memoranda.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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