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Ben RichProponents of health-care reform in the U.S. characterize the status quo as a costly and dysfunctional "nonsystem" of health-care delivery that leaves millions of Americans without access to basic care. Opponents of health-care reform such as that achieved in 2010 with passage of the "Patient Protection and Affordable Care Act (PPACA)" insist that the U.S. already has the best health care in the world. They claim that no one, regardless of insurance status, lacks for care so long as they can reach an emergency room.

Obviously "the truth" lies somewhere in between these starkly disparate characterizations.

Bioethics and health policy

Health policy, or more particularly health-care reform, has not been a major focus of American bioethics. Last year, however, in the heat of the debates over the PPACA, a collective sense of profound dismay emerged within the Association of Bioethics Program Directors (ABPD). Channeling that concern into a strong consensus view, the organization issued a statement titled "Three Myths about the Ethics of Health-Care Reform." I am a member of ABPD and voted in support of issuing the statement. The myths identified were:

  1. Health-care reform will mean giving up control of my own healthcare decisions. In the view of ABPD, the right of individuals to make decisions about their care is now part of the ethos of medicine, and will not change under any of the reforms being seriously considered.
  2. Health-care reform will control health-care costs by depriving patients of important, but costly medical treatments. The fact, per ABPD, is that the reforms promoted by the legislation offer a more coherent approach to delivery of care, and provide a means of controlling costs while maintaining quality.
  3. Health-care reform will deny older Americans medical treatment at the end of life. The ABPD perspective is that advance-care planning as supported by the proposed reform measures is an essential aspect of respecting individual patient autonomy and providing care that is consistent with the patient’s needs and values.

The ABPD statement strongly challenged allegations made by health-care reform opponents.

Historical fear and loathing of government-sponsored health care

Author Jill Lepore began a 2009 article for The New Yorker magazine with a quotation by Yale economist Irving Fisher, best known as one of the founders of the social science of econometrics. Fisher said:

"At present, the United States has the unenviable distinction of being the only great industrial nation without compulsory health insurance."

Lepore noted that Fisher’s statement was made more than 90 years ago, in 1916, but remains accurate. Between the efforts of Theodore Roosevelt in Fisher’s time and the passage of the PPACA in 2010 at least six serious attempts to establish major healthcare reform have been made in the U.S. As part of Social Security legislation, Franklin Roosevelt sought comprehensive health insurance coverage – only to be out-lobbied by the American Medical Association, which denounced it as "socialized medicine" and thus distinctly un-American. Harry Truman, the Democratic president who followed Roosevelt, promoted universal health care as an important component of his "Fair Deal" for the American people. This, too, went down to an ignoble defeat, victim to the same hard-core opposition.

Perhaps the closest we have come (before 2010) to major healthcare reform in this country was the creation of the Medicare program in 1965 under President Lyndon Johnson. Lack of thorough understanding of this program was reflected in the heated rhetoric at the so-called "town hall meetings" in the summer of 2009, when critics of major health-care reform shouted and carried placards demanding Congress and the president to "Keep your government hands off my Medicare."

President Richard Nixon, the lone Republican president to champion comprehensive health insurance for Americans, supported legislation that went nowhere after his resignation in 1974. Presidents Carter and Clinton were similarly unsuccessful in their efforts.

Medical liability, health-care cost containment and reform

The two major political parties have perennially disagreed about the contention that our medical malpractice liability system is a major factor in the exponential increase in healthcare costs. Myth and misinformation are abundant despite the existence of reliable data published in major medical journals. For example, a study by a group of highly respected health policy researchers published in 2006 in the New England Journal of Medicine arrived at four key conclusions:

  • Most patients injured by negligent medical care do not sue (and hence receive no compensation)
  • When claims are based upon weak evidence of negligence, jury verdicts generally agree with independent medical experts conducting retrospective chart reviews
  • When claims are based upon strong evidence of negligence, juries are much less inclined to find negligence than are independent medical experts in retrospective reviews – malpractice plaintiffs win only 50 percent of cases in which reviewing experts find clear negligence
  • Slightly more than 50 percent of the costs of litigating a malpractice claim are attributable to administrative expenses (defense costs plus plaintiff’s attorney contingency fee)

High on the health-policy reform agenda on the Republican side is a demand for a federal cap on damages in medical malpractice awards, with a particular focus on noneconomic damages – e.g., "pain and suffering" and loss of consortium (inability to engage in sexual relations following an injury). However, evidence indicates that such caps at best have a slight tendency to limit increases in professional liability insurance premiums. Evidence that they reduce the number of claims or influence defensive and costly medical practice patterns does not exist.

"Defensive medicine" is a well-known but difficult-to-quantify phenomenon in which physician fears of potential malpractice liability motivate practices that partially account for the escalating healthcare costs. A study of Pennsylvania physicians in emergency medicine, trauma surgery, neurosurgery, obstetrics and gynecology, and other high-risk specialties found that more than 90 percent reported ordering tests unnecessarily, especially expensive imaging studies.

The pervasiveness of defensive medicine, particularly in a broad range of medical specialties, bolsters the arguments of health-care law and policy experts who urge that the most effective reform would be a transformative approach: shifting professional liability claims from the civil justice system into a newly developed system of "health courts" where specially trained judges would preside over quasi-administrative tribunals. The underlying theory is that such an approach could gradually reduce defensive medical practices by instilling a greater sense of consistency and hence predictability into the injury compensation system.

Bioethics and health-care reform

Political discourse regarding healthcare or medical-liability law reform has undertaken no serious consideration of the question "What would a just health-care and injury-compensation system look like?" The hallmarks of such a truly just system would be:

  • Coverage for expeditious access to minimally acceptable quality of appropriate care for all who need it
  • Punctual access to a just and efficient injury-compensation system that consistently authorizes adequate compensation to the victims of medical misadventures while also promptly and effectively identifying and dismissing claims without merit

If we can achieve these goals, while at the same time preserving the generally high quality of care for which our health professionals have become known internationally, then we could credibly lay claim to attaining "the best health-care system in the world."

 UC Davis Health > Spring 2011 > Health Alumni and Friends > UC Davis School of Medicine Alumni
UC Davis Health

Spring 2011

On Bioethics: Ben Rich

Health-care reform: Ethics, law and public policy

Bioethics expert Ben Rich