In the midst of ongoing debate over the scope and desirability of various health care reform proposals, an obvious and critical component of cost management is going unnoticed: malpractice litigation.
By all accounts the soaring costs of health care have precipitated the national discussion on medicine, insurance, and the government’s role in provision and regulation. President Obama has pledged that any reform of the health care industry must be “revenue neutral” for a government already facing huge budgetary shortfalls. In a conference call to faith leaders from around the country on Aug. 19, the president noted, “By far the single biggest driver of our deficit and our debt is federal government spending on Medicare and Medicaid. And Medicare is about to go into the red in eight years.” At the same time he neglected to mention the need to address malpractice litigation as a contributing factor to health care insurance costs.
Insurance companies are often blamed for skyrocketing health care costs. And, indeed, it’s hard to argue with the personal experience of many working Americans, who have seen premiums and co-pays increase while coverage decreases. There are undoubtedly bureaucratic costs and inefficiencies plaguing insurance companies, but these kinds of bureaucracies usually exist and metastasize in response to burdens imposed by external players. In the case of medical insurance in the United States, there are an estimated $5.8 billion in medical malpractice claims annually.
While this figure may seem inconsequential when compared with health care spending expected to reach $2.5 trillion this year, the true import of these billions is found not merely in the direct cost of lawsuits. More significant is the number of procedures that are performed as so-called “defensive medicine,” intended more to mitigate exposure to litigation than to promote patient welfare. While it is difficult to estimate the costs of these kinds of practices, a study published in November of 2008 by Massachusetts Medical Society and UConn Health Center researcher Robert Aseltine Jr. found that 83 percent of doctors surveyed admitted to “practicing defensive medicine, with an average of between 18 percent and 28 percent of tests, procedures, referrals, and consultations and 13 percent of hospitalizations ordered for defensive reasons.” These are not insubstantial numbers, especially if you happen to be one of the many patients directly affected by such defensive medical practice.
The corrosion of the culture of trust necessary to good medical care resulting from these kinds of practices is perhaps even more worrisome than the clearly quantifiable economic costs. Patients are less inclined to trust doctors whom they believe are ordering tests and procedures out of a desire to protect their own economic interests. Patients in turn are much more apt to turn to legal remedies when they feel that doctors have not been forthcoming and trustworthy.
The University of Michigan Health System has implemented a policy in which doctors help foster a culture of trust by voluntarily admitting when mistakes have been made and offering compensation before legal action has been undertaken by the patient. A study by risk officers and officials at the health system found that malpractice claims were cut nearly in half after the implementation of this approach, from 121 in 2001 to 61 in 2006.
Restoring trust in the relationship between patient and doctor is critical to health care reform that promotes human flourishing and societal well-being. The approach taken by the University of Michigan system serves as an example of the kind of undertaking that brings doctors and patients together. This kind of worldly wisdom was invoked by Jesus when he used the prudence of such pre-emptive reconciliation to illustrate a truth with eternal import: “Settle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way, or he may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison. I tell you the truth, you will not get out until you have paid the last penny” (Matthew 5:25-26 NIV).
The alternative is an approach in which lawyers, judges, or insurance agents mediate between doctors and patients who view each other with suspicion. Any comprehensive attempt to reform the health care insurance system and address skyrocketing costs needs to include provisions to protect doctors from spurious litigation and promote the responsible admission of regret and recompense. Such action would encourage doctors and patients to see each other not as adversaries but as partners in mutual trust.