Some sober thoughts on malpractice reform

I’ve written many times on how I think malpractice reform is necessary, but won’t fix health care spending problems. I was pleased to see an excellent manuscript in the latest issue of Health Affairs that built on this premise. “Let’s Make A Deal: Trading Malpractice Reform For Health Reform“:

Physician leadership is required to improve the efficiency and reliability of the US health care system, but many physicians remain lukewarm about the changes needed to attain these goals. Malpractice liability—a sore spot for decades—may exacerbate physician resistance. The politics of malpractice have become so lawyer-centric that recognizing the availability of broader gains from trade in tort reform is an important insight for health policy makers. To obtain relief from malpractice liability, physicians may be willing to accept other policy changes that more directly improve access to care and reduce costs. For example, the American Medical Association might broker an agreement between health reform proponents and physicians to enact federal legislation that limits malpractice liability and simultaneously restructures fee-for-service payment, heightens transparency regarding the quality and cost of health care services, and expands practice privileges for other health professionals. There are also reasons to believe that tort reform can make ongoing health care delivery reforms work better, in addition to buttressing health reform efforts that might otherwise fail politically.

Unfortunately, it appears to be gated. Here’s a key passage, though:

By contrast, decades of scholarship and empirical research suggest that malpractice liability acts only at the margin of health policy, where in relatively small ways it may both protect patients from negligent care and induce inefficient health care spending. (See the online Appendix for a more detailed summary of research on the malpractice system.) Physicians’ clinical decisions, on the other hand, are responsible for roughly two-thirds of total health spending. Physicians determine the quantity and quality of medical services and heavily influence the price paid for them. Research has revealed that far more of this spending is wasteful than can reasonably be attributed to liability pressure alone.

In keeping with this understanding, we suggest using the strength of physicians’ belief in tort reform to facilitate the adoption and implementation of other measures more likely to improve access and efficiency, instead of using its direct effects to justify its enactment. If physicians value malpractice relief more than the public values retaining conventional tort remedies, Congress and the Obama administration might productively swap federal tort reform for health system improvements that require physician leadership or acquiescence either to be adopted or to be effective.

These measures typically involve changing the amount and method of provider compensation or the organization of care delivery. Examples include a quick transition to bundled, episodic payment for services; financial and informational accountability for performance; participation in coordinated interdisciplinary care delivery models, such as medical homes and accountable care organizations; use of standardized, interoperable, and patient-accessible electronic health records with decision support capability; and acceptance of oversight bodies, such as the Independent Payment Advisory Board.

If you can read the whole thing, I suggest you do. Lots of interesting ideas in there.


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