Stonewalling Legal Reform

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It is incredible to me that, amid public concern over the leading healthcare proposals, congressional leadership continues to stonewall any discussion of legal overhaul. They have effectively left the field open to Republicans, who now have seized the center with proposals for special health courts and other ideas that enjoy broad support from almost all healthcare constituents, including consumer groups and patient safety advocates. See here, here and here. I know the trial lawyers give Democrats a lot of money, but can this possibly be smart politics?

The only substantive retort to solving the problems of tort, at least that I've heard, is that the CBO found last year that it couldn't find consistent evidence that fixing malpractice laws would save money. there's also no hard evidence that overhauling fee-for-service reimbursement will save money either--but almost everyone associated with healthcare understands that cost-containment requires a fundamental change in the culture of health care delivery, starting with getting rid of the incentives (both positive and negative) to always do more.

Today's New York Times op-ed by Jon R. Gabel addresses the fallacy of looking for hard data with fundamental change.  "The budget office has particular difficulty estimating savings when it considers more than one change at once....  [I]f both malpractice reform and comparative effectiveness studies were instituted simultaneously, they might work together to yield substantial savings."

(Photo: Flickr User aflcio2008)

Creating a reliable malpractice system with special health courts will not solve all the problems of healthcare, but it will solve some. Reliable law is also a necessary foundation for other changes in the culture of healthcare delivery.  Persuading doctors to use email with patients not only requires a new reimbursement system (Britain now pays doctors more for using email) but also requires a system of justice that reliably supports doctors who use this imperfect but highly productive form of communication.

Congress should listen to doctors and patients.  They see these problems with modern healthcare. The fact that it's hard to "score" the precise savings doesn't mean that the changes are unimportant.  I recall the statement attributed to Einstein: "Not everything that is important can be measured, and not everything that can be measured is important."

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Philip K. Howard is a lawyer, author and chair of Common Good. He is the author, most recently, of Life Without Lawyers: Restoring Responsibility in America, and wrote the introduction to Al Gore's Common Sense Government. More

Philip K. Howard is the author of Life Without Lawyers(Norton 2009), as well as the best-seller The Death of Common Sense(Random House, 1995) and The Collapse of the Common Good(Ballantine, 2002), and he is a periodic contributor to the op-ed pages of The New York Times, The Wall Street Journal, and The Washington Post. He advises leaders of both parties on legal and regulatory reform issues, and wrote the introduction to Vice President Al Gore's book Common Sense Government. A practicing lawyer, Howard is a partner in the law firm Covington & Burling LLP. In 2002, Howard founded Common Good (www.commongood.org), organized to restore common sense to American public life. The Advisory Board of Common Good is composed of leaders from a broad cross-section of American political thought including, among others, former Senators Howard Baker, Bill Bradley, George McGovern, and Alan Simpson. Howard is a civic leader in New York and is Chair-Emeritus of the Municipal Art Society, a leading civic group that spearheaded initiatives to preserve Grand Central Terminal.
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