Where do we go from here? Not sure. One of the things I’ve become fond of saying recently is that change is a process, not an event. There are differences of opinion about that-classic liberals believe that change is, or ought to be, an event. I sympathize with that idea – I am not a patient person when it comes to wanting this done – but I also can read the tea bags leaves well enough to realize that rapid change is not going to happen in health care now. What we can do, then, is fall back, regroup, and try to rally on what people could agree on. Elimination of pre-existing condition underwriting and community rating are fairly non-controversial, at least on the left. And the Republicans will look bad standing against them. There are other battles we can win, possibly in a bipartisan manner.
And there is always the question of tort reform. Tort reform is popular with doctors; we have a deep seated fear of being sued. Lawyers report that our fear is overblown and that lawsuits are a necessary defense against a system wherein doctors protect one another without regard for the suffering of the patient. Doctors feel that lawsuits are random and often unjustified, and every doctor feels that they practice good medicine. I think everyone needs to give up some of their assumptions.
First, the doctors. Ladies and gentlemen, the complaints against us, that our quality is insufficient, that we do not maintain our own standards, and that we are insufficiently transparent in our dealings with error, are entirely justified. We must do better; we must create a system wherein error is minimized and when it does occur, that patients are informed and compensated properly. It should not require a court order to ferret out the place where care went wrong. We usually know, and we have a duty to inform the patient in particular, and the public somewhat more generally. If we complain that the methods for doing this are insufficient, we must create better methods, and refine them until they are sufficient. This is part of our duty to the public, which we have as surely as we have one to the patient, Norman Levinsky’s opinion to the contrary notwithstanding. Moreover, we need to figure out a way to factor cost back into our decisions, and share more information with patients about both cost to them and cost to society of doing “everything”, especially when everything may not be justified. This will cut into our incomes, but will pay in increased respect and peace of mind.
Now the lawyers. Ladies and gentlemen of the bar, you need to admit that medical malpractice law is, in some ways, a crap shoot, wherein patients come to you with tales of woe hoping for a big payday as a result of it. I don’t deny the tale of woe; there’s plenty of woe to go around, and I’ve already said that we as physicians don’t do a good enough job of preventing it. What I deny is that the tort system serves the public good as much as it serves the good of the plaintiff’s bar. Lawyers have done very well under the current system, and are loath to see it altered because under any better system a lot of lawyers would do less well. Lawsuits encourage the practice of defensive medicine. Studies are beginning to be crafted that show it, and furthermore you and I both know it’s true. In order to prevent lawsuits which they feel are in potentio, physicians will do every test, run no risk, and follow every red herring to it’s lair to determine the exact shade of red, and the particular subspecies of herring, because they can never be certain which unchased red herring could lead to a lawsuit. This serves both patients and the public poorly, in terms of the price paid in both dollars and suffering due to unnecessary testing.
In short, politicians, lawyers, and physicians need to stop campaigning, and start governing. We need to figure out a good system for reducing medical error, and put it in place, along with a good system for refining the system we put in place (“continuous quality improvement” is a much hated buzzphrase, but it is also the requirement). We need to reduce the uncertainty which physicians labor under, by making it clear to them in an ongoing manner whether they are practicing good medicine or not. We need to disconnect the compensation of victims of malpractice and medical misadventure from the repair of the system which allows malpractice and medical misadventure to occur. We are all smart, motivated people. We need to get motivated to make things better for all of us, rather than just some of us.
