Krauthammer's Magic Answers

Typically, when you read the title to a Charles Krauthammer column you've read enough to anticipate all of the bloviating that follows. He's entirely predictable, consistently irrational, and is a remarkably weak thinker for a guy who otherwise seems to be reasonably intelligent. The only deviation from the norm is that today's title, Health-Care Reform: A Better Plan doesn't telegraph what follows (although I guess it could serve as a punch line).

Krauthammer claims that only two things are needed to "reform" healthcare in this country. The abolition of malpractice liability for doctors in favor of a taxpayer-funded pool for the victims of malpractice, and a tax increase on the middle class accompanied by a market-distorting tax credit. Seriously.

Krauthammer rattles off the usual set of fictions about the present malpractice system: It's a "casino", settlements are "random", it raises "everyone's insurance premiums" and "creates an epidemic of defensive medicine". The facts, of course, are something else entirely. Most malpractice victims never make claims. Most malpractice cases are correctly decided. Those in which are arguably wrongly decided in favor of the plaintiff have smaller-than-average recoveries. About one in six malpractice cases are wrongly decided in favor of the doctor. This all coming from the New England Journal of Medicine.

Whereas Krauthammer's spinning like a top, I'm relying on the best available data. It would be helpful to have similar statistics from larger studies and analyses - the types that malpractice insurance companies perform for their own internal use - yet for some inexplicable reason, they can't bring themselves to release the results of their own number crunching. (Could it be... because they back up the NEJM? Dare I say, obviously?) I'll give Krauthammer the "benefit of the doubt" that he's repeating the conventional wisdom on the knee-jerk right. It's possible that he knows better, but I don't get much of a sense that he's interested in facts that contradict his biases.

Krauthammer then cherry-picks the most outrageous figures for the "cost" of "defensive medicine" that he can find, purporting,

Defensive medicine, estimates the libertarian/conservative Pacific Research Institute, wastes more than $200 billion a year.

Let's take that "biggest number Krauthammer could find", and assume that he actually believes the entire amount could be eliminated. With healthcare spending projected to hit $2.5 trillion this year, the first half of Krauthammer's "solution" is to cut spending by 8%? With healthcare costs rising at about 7% per year, that should cover about 14 or 15 months of inflation, then what? And if we adopt a more realistic assessment of "defensive medicine" or acknowledge that there's good cause to question if it even exists, we're talking a couple months, days... maybe nothing? Brilliant.

But it gets better. Krauthammer's "cure" for this problem is worse than the disease. Remember, by definition "defensive medicine" is not about reaching a correct diagnosis - by definition, the doctor believes that he has already made the correct diagnosis, and he's ordering an additional unnecessary test as backup in case he's later, unfairly accused of malpractice because it turns out that he's wrong. As I've previously stated,

The argument behind "defensive medicine" is that doctors are so fearful of being sued that they order unnecessary medical tests in order to avoid the possibility of being incorrect in a diagnosis. From a legal perspective this makes little sense, given that doctors dictate the standard of care. If a doctor can meet the standard of care defined by his own profession without prescribing the "unnecessary" test, there's no malpractice suit. Sure, it can be a bit more complicated than that if you have disagreement as to the standard of care. But if 99% of the doctors in a particular legal jurisdiction would not order the test, even in the unlikely event that an expert witness would assert that a violation of the standard of care had occurred, a plaintiff would have a hard time arguing that they're all falling below the standard of practice for that region.

If the doctor is correct in his diagnosis, there will be no malpractice claims based upon his failure to order the test because the test will simply affirm his diagnosis. If the doctor is incorrect in his diagnosis, the test may prevent him from having to defend against the claim that his misdiagnosis was in violation of the governing medical standard of care, but in a case where the test is truly unnecessary it's not realistically possible for a plaintiff to meet the burden of proving a violation of the standard of care. If doctors are practicing bad medicine by sending their patients for unnecessary testing, and insurance fraud by contending that those unnecessary tests are medically necessary so as to get paid by health insurers, I think they need to take ownership of the problem rather than trying to blame lawyers.

But here's the central issue: The claimed practice of defensive medicine is premised upon the fear of being wrongly sued for malpractice. That does happen, as the NEJM points out, principally when the patient and her lawyer have no way of assessing the merits of a malpractice claim without filing a suit to compel the disclosure of records and testimony from the treaters:

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.

On to the Krauthammer "reform":

What to do? Abolish the entire medical-malpractice system. Create a new social pool from which people injured in medical errors or accidents can draw. The adjudication would be done by medical experts, not lay juries giving away lottery prizes at the behest of the liquid-tongued John Edwardses who pocket a third of the proceeds.

Who cares that juries are in fact pretty good at figuring out who should prevail - and that they are more likely to err on the side of doctors than patients. As the NEJM documented,

Although the number of claims without merit that resulted in compensation was fairly small, the converse form of inaccuracy - claims associated with error and injury that did not result in compensation - was substantially more common. One in six claims involved errors and received no payment. The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

Talk to a medical malpractice lawyer about the culmination of a typical client intake interview. Most prospective clients are gently turned away because, even though they may have suffered serious injury to their person, they don't have a viable medical malpractice claim. The next largest group is gently turned away because, although they may have a viable claim, the amount that could conceivably recovered isn't sufficient to justify the significant expense of a malpractice lawsuit. Doctors are spared having to confront the accusations of those patients.

Under Krauthammer's system, instead of consulting lawyers, those people will be told to fill out a form and initiate some sort of administrative hearing against their doctor. The doctor will have to respond to the allegations, spend time assembling documentation or other evidence in support of the response, and possibly have to sit through a hearing for an allegation that would have gotten nowhere under the current tort system. If the premise of "defensive medicine" is that doctors are ordering unnecessary tests so that they don't have to be wrongly accused of malpractice, what's going to happen under Krauthammer's system when those accusations increase exponentially? Further, those "small ticket" malpractice cases that aren't financially viable to litigate will be filed - resulting in an increase in the number of doctors found to have committed malpractice. Even further, some people who "just don't want to sue their doctor" despite clear medical error will not have the same compunction about filing a claim in a system where compensation is entirely divorced from their doctor's pocketbook.

The pool would be funded by a relatively small tax on all health-insurance premiums. Socialize the risk; cut out the trial lawyers.

Even in the nations that Republicans like to point at and scream "socialist", have any implemented socialism on the scale Krauthammer proposes? It's interesting that in nations that centralize and regulate malpractice premiums (e.g., Canada, the U.K.), premiums have historically increased at a lower rate than in the U.S. even when claims were increasing at a higher rate. But not even those "commie nations" have embraced Krauthammer's pure socialism - they seem to think that there should remain some association between the cost of malpractice and the risk that a particular practice area or practitioner poses to a patient.

And that's before we get to basic issues of fairness and due process, in denying malpractice victims the right to be represented by a skilled, knowledgeable advocate when they're trying to prove medical malpractice. Would Krauthammer also ban appeals?

Krauthammer recognizes that there's a danger in effectively immunizing doctors from financial liability for their malpractice, even if he doesn't think they value the time they would have to pour into the defense of a multiplicity of new claims. So he proposes this:

Would that immunize doctors from carelessness or negligence? No. The penalty would be losing your medical license. There is no more serious deterrent than forfeiting a decade of intensive medical training and the livelihood that comes with it.

Is he for real? Any finding that a doctor has committed medical malpractice will result in the immediate and permanent loss of the doctor's medical license? And he thinks the present system encourages defensive medicine?

Please note, the mere fact that I recognize Krauthammer's proposals as imbecilic does not mean that I oppose sensible malpractice reforms. But if this is Dr. Krauthammer's prescription for reform, we should all be able to recognize it as malpractice.

Krauthammer's other "solution":

Tax employer-provided health-care benefits and return the money to the employee with a government check to buy his own medical insurance, just as he buys his own car or home insurance.

There's a good case that can be made for phasing out the tax subsidy for employer-based health insurance, but those who favor its immediate elimination are not interested in reform - they're interested in chaos. They're not interested in placing people in good, stable group health insurance plans. They're interested in shifting people to various alternate plans that offer poor coverage, high premiums, in all likelihood higher cost than the employer-sponsored plans. And, at this juncture, there's every reason to believe that Krauthammer is shilling for one of those groups:

If we additionally eliminated the prohibition on buying personal health insurance across state lines, that would inject new and powerful competition that would lower costs for everyone.

There is, of course, no reason that insurance companies cannot enter additional states, offering plans in those states, right now. The impediment is that to set up health coverage you need to create a network of participating doctors, clinics and hospitals who accept your plan. To the extent that Krauthammer's suggesting that allowing the sale of "health insurance across state lines" would remove those barriers to entry, he's a bald-faced liar.

What this proposal is, in fact, about is allowing insurance companies to relocate "on paper" to low-regulation states, then sell policies in high-regulation states. So if you're in a state that mandates coverage for a particular health condition, your insurance company can hop across the state or the country, reform itself under the lesser regulations of a new state, and offer a policy that does not include that coverage. As with corporate regulation, this will trigger a "race to the bottom", with a number of states offering a minimum of regulation of insurance companies in order to entice them to incorporate there, even though they don't offer any coverage in that state. You may end up with cheaper coverage, but you'll lose your choice for more comprehensive coverage. And you won't end up with more choices, because the insurance companies still won't want to incur the costs of developing new provider networks in your state.

Krauthammer doesn't explain how either one of these "reforms" will help anybody gain better, more affordable or more comprehensive insurance, or allow even one uninsured person to gain coverage. But then, I'm being unfair - Krauthammer never stated that when he said his reform plan was "better" that he meant it was better for ordinary, working people.