The health care legislation that Congress enacted earlier this year, contrary to much of today’s overheated rhetoric, does many things right. But it does almost nothing to reform medical malpractice laws. Lawmakers missed an important opportunity to shield from malpractice liability any doctors who followed evidence-based guidelines in treating their patients.
Plausible enough until you think about it. True, the health care reform package did nothing to help ease the malpractice crisis. Orszag's solution? A little further on in the article he gets a little more specific:
The traditional way to reform medical malpractice law has been to impose caps on liability — for example, by limiting punitive damages to something like $500,000. A far better strategy would be to provide safe harbor for doctors who follow evidence-based guidelines. Anyone who could demonstrate that he has followed the recommended course for treating a specific illness or condition could not be held liable.
So, Orszag seems to be saying, (since his strategy is “far better”) forget the caps. Let the punitive damages remain, to leverage doctors into adherence to evidence-based guidelines. Malpractice crisis? Solved. Regional variations and inefficiencies? Gone. Quality chasm? Closed. Win-win situation. Unless you've got a clue about how health care really works.
There's no way this would solve anything. Even if it could, by Orszag's own admission, we'd have to wait a while for relief:
...this approach to reform will require larger investments in research into what works and what doesn’t. Fortunately, both the health care reform act and the 2009 economic stimulus act provided additional financing for such comparative effectiveness medical research, and the health care act provides for a Patient-Centered Outcomes Research Institute to coordinate the work. It’s a good start.
I'd like to thank Michael Kirsch, MD, who alerted me to this article in my comments.