Private Regulation

By Avraham, Ronen | Harvard Journal of Law & Public Policy, Spring 2011 | Go to article overview
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Private Regulation


Avraham, Ronen, Harvard Journal of Law & Public Policy


INTRODUCTION
I. THE VARIOUS COSTS OF THE
   HEALTHCARE SYSTEM
   A. Costs Associated with Underuse
   B. Costs Associated with Misuse
   C. Costs Associated with Overuse
      1. Defensive Medicine
      2. Offensive Medicine
      3. Cost-apathetic Medicine
      4. Compassionate Medicine
   D. Summary
II. IS CURRENT MEDICAL MALPRACTICE
   LAW THE ANSWER?
   A. Can Tort Law Tackle the Healthcare
      System's Costs?
   B. Can Current CPGs Tackle the Costs
      of the Healthcare System?
      1. When the Government Writes
         Guidelines
         a. Theory
         b. Evidence from States' Experience
            with Guidelines
         c. Evidence from Federal Experience
            with Guidelines
         d. Summary
      2.  Guidelines Written by Hospitals and
         Hospital Organizations
      3. Guidelines Written by HMOs,
         Health Insurers, or
         Liability Insurers
      4. Guidelines Written by Professional
         Associations
   C. The Treatment of CPGs in Practice
      1. The Treatment of Guidelines Within
         the Medical Profession
      2. Courts' Treatment of Guidelines
   D. Summary
III. THE DESIGN OF PRIVATE
REGULATION REGIME
   A. The Legal Infrastructure
      1. Liability from the Ex Ante
         Perspective
      2. Contractually Standardized Care
         and Reimbursement Levels
      3. Private Regulatory-Compliance
         Defense
      4. Intellectual Property Protection for
         Guidelines
      5. Not Recognizing the State of the Art
         Defense
      6. Guaranteeing Private Regulators'
         Solvency
      7. The Value of Constrained Pluralism
      B. Implementation
IV. EVALUATION IN LIGHT OF OBJECTIONS
   A. The PRR Compared to
      Alternative Regimes
      1. What is the Difference Between PRR
         and Liability for Gatekeepers?
      2.  What is the Difference Between PRR
         and Self-Regulation?
      3. Why Not Strict Liability or No-Fault
         Regimes?
      4. Why Do We Need Legislation?
         Why Do We Not See It in
         the Market Already?
         a. MCOs as Cost Internalizers
         b. Liability Insurers as Cost
            Internalizers
         c. Government as Cost
            Internalizer
         d. Private Firms as Cost
            Internalizers
   B. Practical Medical Concerns
      1. Medical Ethics
      2. Good Medicine Requires Discretion
      3. Not Enough Reliable Scientific
         Information Exists To Make the
         Endeavor Worthwhile
      4. How Effective Will PRR Be
         in Reducing Costs?
         a. Misuse (Medical Errors)
         b. Underuse
         c. Overuse
   C. Legal and Political Concerns
      1.  Are We Losing the Information
         Updating Benefit that Tort Law
         Provides?
      2. Would Private Regulation Lead to
         Pulling the Plug on Grandma?
      3. Could a Profit-Driven Regulatory
         Regime Ever Win
         Political Support?
V. BEYOND MEDICAL MALPRACTICE
CONCLUSION

"The more I have studied it, the more I believe that less discretion for doctors would improve patient safety."

Don Berwick (1)

INTRODUCTION

Addressing the American Medical Association (AMA), President Obama described the healthcare system as a "ticking time-bomb for the federal budget." (2) He stressed the need "to improve the quality of medical information making its way to doctors and patients." He further noted that "it can take up to 17 years for this information to find its way to an exam room or operating table." (3)

Improving the quality of information channeled to doctors can further what legislators agree are healthcare reform's three main goals: increasing access for the uninsured, controlling rising costs, and improving patient safety by improving the quality of care. The main focus of the Patient Protection and Affordable Care Act (ACA), (4) a historic health care reform bill signed by President Obama on March 23, 2010, was the first of these goals--increasing access by providing insurance to thirty-two million uninsured Americans.

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