Scientific method offers view to solving liability crisis

Amid the national discussion about health care in the United States, I've traveled all over the country, and I have heard a lot about one overarching theme: It's all about the cost.

Medical care always will cost something. But in combination, the steep rate of rising costs and the tsunami of disease burden stemming from individual behavior and lifestyle decisions soon will overwhelm us. It has made what constitutes unnecessary costs -- and how to control them -- the focus of discussion inside the health care community.

One theme prominent in this national conversation is the contribution of medical liability costs to overall health care spending.

I had the opportunity to raise this issue at a meeting last May when I represented the American Medical Association, along with Rebecca Patchin, MD, then chair-elect of the Board of Trustees. Gathered at the White House were officials from the American Hospital Assn., Pharmaceutical Research and Manufacturers of America, AdvaMed (Advanced Medical Technology Assn.), America's Health Insurance Plans and Service Employees International Union, sitting around a table with President Obama and his leadership team.

Working together, we outlined things the private sector could do to bend the cost curve downward.

I noted that through our AMA-convened Physician Consortium on Performance Improvement, we would review high-volume, high-cost, high-variability medical conditions and create science-based guidelines to follow. For example, reducing or eliminating the need for imaging tests would be one way to trim costs.

But I also pointed out that if physicians were vulnerable to the risk of being dragged into court because they didn't order a test, then medical liability pressures would cause any cost savings to vanish. This would be yet another potent obstacle to the ability to pay for universal health insurance coverage.

The president said he would help. And in his joint address to Congress on Sept. 9, he followed through by providing $25 million in grants to states to test alternative ways to reduce the unnecessary costs resulting from our broken medical liability system.

We know that caps on noneconomic damages have been shown to reduce the medical liability premiums physicians pay and thus increase access for patients to physicians, especially in high-risk specialties.

We believe it works, and we are committed to this approach. But some have demanded that the AMA not support any health system reform legislation unless medical liability reform is part of the package. In reality, a law allowing the federal government to usurp state powers may result in weakening medical liability reforms in some states that already are on the books and are working. Drawing such a line in the sand could end up causing more harm than good.

That said, the AMA will continue to lead an aggressive campaign to reduce medical liability premiums to preserve patients' access to care and to reduce the cost of defensive medicine.

In this national discussion, we may have reached a point where we can apply scientific principles to address the need for medical liability reform.

To use an analogy, physicians knew that the iron lung could treat the consequences of polio rather than simply address symptoms. But a better idea was to prevent the disease in the first place by investing in research and finding a vaccine.

As described in Polio: An American Story by David Oshinsky, research and resources were tightly focused on the goal of developing a vaccine to prevent the disease of polio. And when that mission was accomplished, there was no need to continue to create new and better iron lungs.

In the realm of medical liability reform, caps on noneconomic damages are the iron lungs. We need to treat our medical liability crisis as though it were a disease. Any physician who has fought a frivolous lawsuit can attest that it can take a human toll that can resemble posttraumatic stress disorder when you find yourself in a courtroom charged with negligence for doing your job.

Caps on awards are one route to reform -- and an effective one. But there are others out there that are also effective -- and also consistent with AMA policy.

These include health courts, expert witnesses and early offers.

The AMA also has discussed the idea of a "safe harbor" for following evidence-based guidelines, but that has not been made an official policy.

We need to keep our eyes on the prize and maintain focus on reducing the $120 billion currently spent annually on additional tests that are ordered as protection against a medical liability lawsuit. That's money that can be used to expand health insurance coverage.

The president and Secretary of Health and Human Services Kathleen Sebelius are urging states and health systems to apply for a share of the $25 million in grant money available to develop ways to solve the medical liability problem.

Likewise, the polio vaccine was not developed with a single experiment, or a single grant. It required a scientific method of testing theories to find which worked best. And that is where we are now with our medical liability situation in America. What will be the best solution to help prevent the unnecessary costs of medical liability? That, we don't yet know. But as physicians trained in the scientific method, we should be ready to test any and all possible solutions, to innovate, focus, refine and improve. That's the way to find the vaccine that prevents what ails our system.