Flinging open the courthouse doors is about the worst possible way to ensure quality healthcare.
In fact, a presidential commission on healthcare quality warned earlier this year that "perhaps the most significant deterrent to the identification and reduction of errors (in healthcare delivery) is the threat of costly, adversarial malpractice litigation."
Now just a few months later, many legislators are pushing to make health plans broadly liable for the decisions of individual practitioners and administrators of health plans.
Have you ever met a physician who said the threat of a lawsuit motivated him or her to practice at the highest level possible? On the contrary, the fear of being dragged into court without good cause fuels defensive medicine, which, in turn, drives up the cost of healthcare.
No one really gains from this situation except plaintiff lawyers-who receive close to six cents of every 10 cents in settlements. It's no surprise that they are spending heavily to support those lawmakers willing to push health plan liability bills.
Physicians and hospitals are so leery of litigiousness that the American Medical Association opposes a plan by the Joint Commission on Accreditation of Healthcare Organizations to require hospitals to report "sentinel events," incidents that could have caused or did cause a patient's serious injury or death.
The AMA argues that any benefits to patients from such reports are more than offset by the need for doctors to practice even more defensively because of the added risk.
What holds true for physicians is also true for health plans. Alain Enthoven, chairman of the California Managed Health Care Improvement Task Force, wrote to Gov. Pete Wilson: "HMOs could make everybody happy and avoid any suits for denying or curtailing benefits by backing off from utilization management and approving everything. If they did . . . health expenditures would soar again, with very destructive consequences, including pricing coverage out of reach for even more families of moderate means."
If our goal is to make health insurance as affordable as possible, surely the answer is not to drive up costs by shifting healthcare decisionmaking to the courtroom. And if our goal is to make sure health plans are accountable for their decisions, there are much better ways to get there.
There's the increasingly rigorous accreditation process. The health plan community also has demonstrated its willingness to be accountable by embracing an explicit and comprehensive code of conduct, including a commitment to provide a prompt appeals process to address situations in which a patient or a physician disagrees with a plan's interpretation of coverage. A number of plans also use third-party reviews of life-threatening situations or experimental treatments.
Many lawmakers recognize that strengthening this rational approach will produce better results than exposing health plans to the risk of lawsuits. Others, however, argue that the threat of litigation will shield patients.
The issue has broken largely along partisan lines. On July 24, the House-with mostly Republican support-approved legislation that differs mainly from the Democratic leadership's bill in that it does not call for health plan liability. In the Senate, the Republican leadership proposal is not moving toward expanded liability.
In fact, there's abundant evidence a no-holds-barred litigation climate has a chilling effect on objective decisionmaking. That might be justifiable if the tort system at least worked well for injured patients. But it doesn't, according to several major studies that show most genuine negligence isn't brought to court; the claims of many people who sue are meritless; jury awards are famously capricious; and malpractice payments go primarily to lawyers and to cover court costs. Injustice is built into this corner of our justice system.
In Texas legislators recently passed a bill allowing patients to sue health plans but supposedly guarding against abuses by requiring an initial independent review, reliance on expert witnesses and the posting of bonds, which must be paid if a suit is judged to be frivolous. Despite these precautions, however, health plans are finding that utilization reviews are now much less effective in improving care and controlling costs.
In a July 2 letter to members of Congress, the three medical doctors who direct Scott and White, a well-regarded health plan serving rural Texas, wrote that the new law has markedly increased utilization of healthcare services, in part because it exposes plans to lawsuits for delaying or denying care-but doesn't define what constitutes delay. Medical directors could face court action for taking the time to evaluate a request properly or delaying a questionable treatment pending the outcome of more conventional treatment or therapy.
As a result, the trend is to authorize everything. Scott and White's doctors wrote: "Our premium rates are increasing at double digits. . . . We do not believe patient care has been improved by the effects of this new law, and in fact, we could argue the opposite."
Patient care isn't improved by substituting the judgment of legislators, plaintiff lawyers and juries for that of medical directors and other health professionals. Defensive healthcare, which adds an estimated $10 billion to $20 billion a year to the trillion-dollar cost of healthcare, isn't the right way to minimize mistakes. Instead, we need to set up systems that will promote consistency of care, accountability and continual quality improvement.
W. Edwards Deming, the father of the continuous quality improvement movement, urged managers to "drive out fear." He meant that people who live in fear of reprisal are less likely to admit and correct mistakes than try to conceal them. A doctor made a similar point recently when she told the New York Times that "the climate of blame in this country, fueled by the litigation process, where we have to identify someone at fault who will pay exorbitantly, makes it difficult to walk out and finger yourself."
These cautionary words should be a guide as we consider proposals to build litigation freeways between healthcare and the courts-a fast track the nation can't afford. Care can be improved thoughtfully, systematically and incrementally, not by hanging the guillotine of litigation over the heads of practitioners and health plans.
Ignagni is president and chief executive officer of the American Association of Health Plans, Washington.
