Lawsuits for medical malpractice are always a subject of intense controversy. Many in the health care industry, including doctors and health insurance companies, as well as many conservative politicians, contend that the fear of being sued causes physicians to order excessive and unnecessary tests and treatments which are a major factor in causing the escalating costs of medical care in the United States. Of course many attribute the excessive testing to the pay for service system where the more tests that a doctor or hospital does, the more they get paid. On the other hand trial lawyers and consumer groups point out that medical mistakes are causing thousands of needless deaths and that the threat of being sued makes health care providers more careful and saves lives.
In 2010 Peter Orszag, the director of the White House Office of Management and Budget, weighed in on this issue in an op-ed for the New York Times. It was Mr. Orszag ‘s contention that a much more aggressive effort is needed to protect doctors who follow “evidence-based guidelines”. A representative of the Center for Justice and Democracy immediately jumped on this proposal, calling it “a horrendous idea” and saying that clinical guidelines should never be the basis for determining whether harm to a patient was caused by negligence.
At the risk of bringing down the wrath of my brother trial attorneys on my head, I do think that what Mr. Orszag suggests has the kernel of an idea which could work. I have long thought that the solution to relieving doctors from the fear of being sued because of a failure to order sufficient diagnostic testing would be to establish detailed protocols so that with any given set of facts concerning a patient’s condition, there would be a clear standard of the testing to be implemented.
The fly in the ointment, so to speak, of this idea is that development of such protocols would take an enormous amount of effort and the input of many diverse participants. It would require establishment of a body with authority to determine the precise action condoned under every possible set of circumstances. The complexity and magnitude of this task would be just short of overwhelming, but if we are serious about addressing this problem, then it would, I think, be worth the effort.