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)
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. …