Stonewalling Legal Reform

Philip K. Howard Sep. 7, 2009, 8:51am

It is incredible to me that, amid public concern over the leading healthcare proposals, congressional leadership continues to stonewall any discussion of legal overhaul.

They have effectively left the field open to Republicans, who now have seized the center with proposals for special health courts and other ideas that enjoy broad support from almost all healthcare constituents, including consumer groups and patient safety advocates. I know the trial lawyers give Democrats a lot of money, but can this possibly be smart politics?

The only substantive retort to solving the problems of tort, at least that I've heard, is that the CBO found last year that it couldn't find consistent evidence that fixing malpractice laws would save money. There's also no hard evidence that overhauling fee-for-service reimbursement will save money either--but almost everyone associated with healthcare understands that cost-containment requires a fundamental change in the culture of health care delivery, starting with getting rid of the incentives (both positive and negative) to always do more.

A New York Times op-ed by Jon R. Gabel addresses the fallacy of looking for hard data with fundamental change. "The budget office has particular difficulty estimating savings when it considers more than one change at once.... [I]f both malpractice reform and comparative effectiveness studies were instituted simultaneously, they might work together to yield substantial savings."

Creating a reliable malpractice system with special health courts will not solve all the problems of healthcare, but it will solve some. Reliable law is also a necessary foundation for other changes in the culture of healthcare delivery. Persuading doctors to use email with patients not only requires a new reimbursement system (Britain now pays doctors more for using email) but also requires a system of justice that reliably supports doctors who use this imperfect but highly productive form of communication.

Congress should listen to doctors and patients. They see these problems with modern healthcare. The fact that it's hard to "score" the precise savings doesn't mean that the changes are unimportant. I recall the statement attributed to Einstein: "Not everything that is important can be measured, and not everything that can be measured is important."

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