Pro-actively improve quality, rather than reacting to liability concerns

Over the past year I have been involved in many discussions with doctors, healthcare executives, elected officials, plaintiff and defense attorneys and others about healthcare reform. Bottom line: There is no consensus what the future holds.

There is no question that reform is necessary to avoid absolutely bankrupting the country. However, the recent legislation is a work in progress, not yet an achievement. A change in congressional leadership could derail, or improve, the entire process, depending on one’s point of view.

Though there is debate about the method, some say it goes too far, and others not far enough. Though there is a framework in place, most of the details are yet to be worked out. Though there is a great deal of focus on improving quality and lowering cost, the patient is a surprisingly insignificant part of the equation. Though “capitation” and “managed care” are not publicly being promoted as solutions, almost everyone involved privately admits we will soon be dancing with that elephant in the room.

I recently attended Swedish Hospital’s 100th Birthday Symposium on “Innovation in the Age of Reform.” With a grand array of speakers including government leaders like Representatives Jim McDermott and Jay Inslee, Microsoft executive Peter Neupert, and health industry CEO’s from around the country, it was time well spent – primarily because it became clear that the end game has yet to be played out. Were this a horse race, I would opt out of betting on anyone.

One of the interesting aspects of almost every discussion is the relative absence of talk about malpractice reform. Health leaders at their core know that things could be better, and are working hard to make it so.

Despite what doctors may feel, the overall plan emphasizes improving quality pro-actively, rather than reacting to liability concerns. Everyone recognizes that there are better and cheaper ways to provide care by applying best practices from “evidence-based medicine” and “comparative effectiveness research” to all areas of our health care.

Overuse of medical technology is rampant, but attorneys are not being openly blamed for that. In fact, it’s often acknowledged that it is the patient who is driving demand. This is a result of our current fee-for-service system in which neither the provider nor recipient of a service has any incentive to eliminate waste. In fact, the incentives are backward; the more doctors do the more they get paid. And it costs the patient nothing – at least until the next premium increase (or employer request for greater participation.)

Doctors are not paid for long discussions with patients about options. Any true reform must incentivize both doctors and patients “to do the right thing.” And that’s difficult to achieve in a profit driven insurance industry.

Should capitation and managed become a part of the healthcare scene, an entirely new aspect of medical litigation will arise: the accusation that a physician did not “do the right thing,” not because of negligence but because he/she had a profit motive. There is probably a fair amount of case law currently available – with existing HMO’s and managed care organizations – that could be pulled off the shelf and reviewed. It will come in handy if that is the direction we are heading.

Charles A. Pilcher is an emergency physician who has helped both plaintiff and defense attorneys with malpractice litigation for over 25 years. He can be reached at his self-titled site, Charles A. Pilcher, MD.

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