Reflections on the Health Care Quagmire

Yesterday, Dr. Scott B. Rae (a PhD in philosophy/ethics, not an MD) gave a very insightful and thought-provoking talk on health care as part of the Faith & Law lecture series (despite the name, most attendees at these great weekly lectures are Hill staff and agency staff, not necessarily lawyers). He did not offer any easy answers or talk about any Presidential candidates, but what he said underscores a lot of Huckabee's health care points.

Main theme of Dr. Rae: we want 4 things out of health care, but unfortunately it is impossible to achieve all at once: 1) high quality and innovation, 2) universal access, 3) choice of doctors and treatments, and 4) low cost. [(1) and (2) obviously work against (4). The choice factor works in favor of low cost only if individuals are personally responsible for paying for their choices, otherwise it will also work against low cost.] Because they can't all be maximized simultaneously, we have to rank them in importance. It is best if public policy enables people to rank these things for themselves, instead of having the same ranking forced on all of society.

Now for the "ah ha" moments of Dr. Rae's lecture, which really jive with Huckabee's positions:

Insightful point #1: We should stop talking about universal insurance as the goal. The real goal is access to care, which is not the same thing as insurance. A lot of people with insurance can't get the care they need and a lot of people without insurance do get care at other people's expense.

Insightful point #2: If there is a human "right" to health care, it must be understood as a right only to a minimal level of health care, not all the health care you want. As with other essential needs such as food and shelter, society (via some combination of government and charity) should guarantee a certain floor amount for everyone. Food stamps and soup kitchens are good - a just society needn't make sure everyone can eat steak or live in a McMansion. Same thing should go for health care. Health care above the floor is a consumer choice you should have to pay for yourself.

Insightful point #3: As Huckabee says, we don't spend enough on preventative care and way too much on catastrophic care. Huckabee also notes that reforming medical liability is an important way to reduce cost. Dr. Rae's lecture made me realize for the first time that reforming medical liability is absolutely essential to shifting health care dollars to preventative care. Here's why medical liability reform is a huge twofer:

• People consume more health care dollars in the last 12 months of their lives than the rest of the lives combined. Much these dollars don't come from their own pockets, though. They come from insurance (passing on costs to other insurance holders) or they are debts to hospitals and doctors that are never paid (so hospitals and doctors raise rates on routine procedures to make up for all the money they're losing on bad debts).
• A lot of this end-of-life spending is for futile treatments - things that will not cure a person. (Includes expensive treatments that only slightly extend lifespan, and treatments meant to cure that are administered after it is too late that actually can accelerate death.) Doctors very frequently give dying people futile treatments because of medical liability. If they refuse the treatment and the person dies (as they almost certainly will), the family may bring a wrongful death suit against the doctor. One doctor even admitted to Dr. Rae: "if you told me to stop treatment and your family wanted me to keep going, I would keep treating you even though you didn't want it, because you're going to be dead soon but your family will still be alive to sue me."
• Doctors are afraid of simply being sued even if there is very little chance they will be found liable for anything. Many insurance companies will raise their rates so much it puts a doctor out of business if the doctor is merely named in a suit, even if the doctor wins. Medical liability reforms won't work unless they address this factor.

Dr. Rae didn't say how to solve the last problem, and admittedly I don't think Huckabee has yet either. As a lawyer who has done some work in the health insurance field (not for the insurance companies), here are my two cents:

1¢: Government can and should mandate that insurance companies can't raise rates on doctors who are sued but found not liable.

2¢: Medical malpractice and medical wrongful death suits should be required to go to special courts or arbitration boards that specialize in medical issues. Ordinary jurors cannot understand whether a doctor acted reasonably or the science of medical causation. They understand is that someone is dead and their family is grieved, and plaintiffs' attorneys love to perpetuate class warfare against "highly paid" doctors (exhibit #1 John Edwards), seriously undermining the fairness of these cases.