The health care legislation that Congress enacted earlier this year, contrary to much of today’s overheated rhetoric, does many things right. But it does almost nothing to reform medical malpractice laws. Lawmakers missed an important opportunity to shield from malpractice liability any doctors who followed evidence-based guidelines in treating their patients.
As President Obama noted in his speech to the American Medical Association in June 2009, too many doctors order unnecessary tests and treatments only because they believe it will protect them from a lawsuit. Instead, he said, “We need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine and encourage broader use of evidence-based guidelines.”
Why does this matter? Right now, health care is more evidence-free than you might think. And even where evidence-based clinical guidelines exist, research suggests that doctors follow them only about half of the time. One estimate suggests that it takes 17 years on average to incorporate new research findings into widespread practice. As a result, any clinical guidelines that exist often have limited impact.
How might we encourage doctors to adopt new evidence more quickly? Malpractice reform could help — possibly a lot.
The academic literature tends to play down the role of medical liability laws in driving up health care costs. Doctors themselves, however, almost universally state that malpractice statutes lead to extraneous testing and treatment.
It is also conceivable that because such laws usually focus on “customary practice” — that is, a doctor who has treated a patient the way most other doctors in the area would is considered safe from accusations of malpractice — they create a strong contagion effect among doctors. The laws, no matter how weak or stringent, may therefore explain why doctors in some parts of the country generally adopt much more intensive approaches than those in other areas do.
The traditional way to reform medical malpractice law has been to impose caps on liability — for example, by limiting punitive damages to something like $500,000. A far better strategy would be to provide safe harbor for doctors who follow evidence-based guidelines. Anyone who could demonstrate that he has followed the recommended course for treating a specific illness or condition could not be held liable.
The health care reform act that Congress passed earlier this year included a modest set of state pilot projects, including one in Oregon that is intended to experiment with this approach. But these pilots are small; the project in Oregon, for example, has only $300,000 in financing.
What’s needed is a much more aggressive national effort to protect doctors who follow evidence-based guidelines. That’s the only way that malpractice reform could broadly promote the adoption of best practices.
Congress has taken a step in this direction before. As Prof. James Blumstein of Vanderbilt University Law School has pointed out, a little-known provision in the Social Security Act amendments of 1972 provides immunity from malpractice liability to doctors who treat patients in conformity with the standards set forth by so-called quality improvement organizations — nonprofits under contract with Medicare that work to improve care. The provision remains in force, though those organizations have yet to set such standards.
Organizations like the American Medical Association and the Institute of Medicine could also be called upon to issue the needed evidence-based standards for malpractice immunity. But no matter which body is put in charge of certification, this approach to reform will require larger investments in research into what works and what doesn’t. Fortunately, both the health care reform act and the 2009 economic stimulus act provided additional financing for such comparative effectiveness medical research, and the health care act provides for a Patient-Centered Outcomes Research Institute to coordinate the work. It’s a good start.
Better technology would help, too. Your doctor’s computer should be able to not only pull up your health records (after you have approved such access) but also quickly suggest best-practice methods of treatment. The doctor should then be able to click through to read the supporting research. Subsidies in the stimulus act help doctors pay for this kind of technology.
A final step toward improving standard medical practice will be to better align financial incentives for delivering higher-quality care. Hospitals now lose Medicare dollars, for example, if they succeed in reducing readmissions. Medical professionals should be given incentives for better care rather than more care.
The health care reform act already includes measures that enable policymakers to shift Medicare’s payments toward “fee for quality” rather than “fee for service.” My next column will discuss these measures, which get far less credit than they should, in more detail.
Opponents of the act are generally off base in criticizing investments in improved care. In complaining about the missed opportunity to reform medical malpractice laws to promote evidence-based medical practice, on the other hand, the critics are entirely on target.
Peter Orszag, the director of the White House Office of Management and Budget from 2009 to 2010 and a distinguished visiting fellow at the Council on Foreign Relations, is a contributing columnist for The Times.
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