You’re Dead Wrong, Jay Inslee (D -WA, 1st)

Last summer as the infamous town hall meetings played out across the country, I experienced my initiation into the world of health care reform and public politics. In the gymnasium of the North Kitsap High School in Poulsbo, Washington, I was one of

thousands of concerned citizens who turned out to hear our congressman, Jay Inslee, Democrat, 1st Congressional District, Washington referee a public meeting on health care reform. From the outset it was clear that there was a well orchestrated contingent that was bent on disrupting the proceedings and propagating well scripted lies and disinformation about the issues. As my name was called to comment half-way through the proceedings, I experienced my political debut and transcended my normal reluctance to address public audiences. After I got the microphone and in the brief time allotted to me, I tried to refute as much of the disinformation as possible and to frame the case for meaningful single payer reform. It was clear, however, that even the “liberal” Democrat Congressman was not really invested in medically meaningful reform.

I must commend Mr. Inslee on the way he handled the fractious and potentially disruptive crowd. However, I was disappointed but not entirely surprised when he concluded his summation by reaffirming his belief that litigation is a means by which the quality and the integrity of healthcare can be assured. The right to sue, according to Mr. Inslee, is to be preserved to achieve this goal.

This philosophically blinkered and transparently self-interested perspective (he is a lawyer, after all) is among the greatest reasons that the US health care system is so completely dysfunctional. (Aside of course, from the predatory practices of the health insurance industry--but that’s a topic for another time). Alternatives such as universal health insurance which obviates the need to sue for expenses, or socially regulated, truly mutual, no-fault, non-profit insurance schemes were just not on his radar.

Of course, to listen to the academic discourse on health care costs might lead one to conclude that he is right. Frequently stated in the press, in think tank statements, and amongst the policy wonks is the notion that the cost of litigation contributes very little if anything to the runaway costs of health care in the United States. Author Tom Baker, a lawyer, in his book, The Medical Malpractice Myth, published by the University of Chicago (no less) states blithely that “the real problem was too much medical malpractice, not too much litigation”. He dismisses the impact of manifest and hidden costs of malpractice litigation as an “urban myth”. Aside from the obvious failure to transcend professional bias, Mr. Baker is part of a wider academic failure to comprehend the very real day-to-day impact of what has frequently become nothing less than a system based on adversarial patient care.

He is not alone. Academicians such as Greg Bloch from Yale, are quoted as maintaining that at most 2% to 3% of the multi-trillion dollar health-care expenditures in the US are attributable to litigation and defensive medicine. That translates to “only” $55 B per year. How much care would that provide in underserved areas of the US? Such analysts even tout their dual law and medicine degrees, but it is a safe bet that such people have never once had to deal with the ethical and financial dilemmas that are a daily routine in real-world medical practice in the US.

The reality is that the toxic influence of adversarial patient relationships and the spiraling mutual distrust that characterizes many patient-physician encounters in the US has utterly poisoned the formerly advocacy-based and sacred physician-patient relationship. Any lawyer or academic apologist for this adversarial, litigation-based system that is rampant in the US has never walked a centimeter in a clinician’s shoes. If they had, they would understand that the implicit threat and the mutual wariness that characterizes most clinical encounters in the US are destructive to the very foundation of any sort of rational, humanistic, population-based, not to mention effective, healthcare delivery.

This also results in the paralysis of clinical judgment, the undermining of collaborative treatment and results, at its very heart, in the destruction of the very power to heal. And it is yet another example of the cynical reduction of health care to a commodity that can be manipulated for personal financial gain as a part of the self-perpetuating and ultimately self-defeating cycle of self interest that is slowly destroying American healthcare. And this is not just a 2% or 3% proposition.

Of course, if you ask a lawyer like Jay Inslee, they see themselves as a last bastion of hope in the defense of hapless consumers who are subjected to the routine callousness and arrogance of the medical profession. Life is just one continuous John Grisham novel where self sacrificing lawyers are the only ones who truly care. In fact, the health care policy literature is rife with statements by legal academicians to the effect that litigation is the last best hope for quality assurance and high standards in healthcare. It simply does not occur to them that there are other far less self-interested, costly, and destructive means to the same ends. How on earth can a 30% contingency fee be a tool of health care quality assurance or reform? In fact, a truly dispassionate observer might rationally conclude that the role of litigation and its manifestly adverse impact on the very foundations of health care are not only misguided but ultimately constitute nothing less than a parasitic extortion racket with no concern whatsoever for improving the health or wellbeing of the nation’s citizens.

If there are any lawyers reading this blog who made it this far, I make no apologies, because the effect of this perverse worldview is enormous on clinicians. Perhaps there is fertile ground for researchers less encumbered by conflict of interest or legal indoctrination to explore just to what extent quantitatively this perverse arrangement actually has on healthcare delivery and cost. However, as a physician who in almost 30 years of practice has never been sued, (probably a combination of competence, common sense and luck) but who has witnessed conscientious, compassionate, humane colleagues utterly destroyed by capricious law suits served up on a whim by self-interested lawyers, I can tell you again that it’s a far more more than 2% to 3% impact. Qualitatively, the day-to-day impact on physicins is enormous. And that’s not an “urban myth”.....

I have no personal animosity towards Jay Inslee. In fact, during the brief conversations I’ve had with him, I like the guy. However, the legal profession and the lawyers who become politicians in disproportionate numbers have imposed an antagonistic worldview on our society that simply doesn’t mesh with our better instincts to cooperate and to care for one another. I am convinced this is one of the many reasons that the healthcare “system” in the USA is so irretrievably broken and so impervious to meaningful reform.

Perhaps we need more teachers and plumbers and farmers and poets in Congress. (As well as the sweeping campaign finance reform needed to bring this about.) Perhaps we need to work conscientiously to recapture the communication skills and trust and caring that are central to effective health care delivery. But clearly the present way is not satisfying or satisfactory for doctors or for patients. There will probably always be doctors who are arrogant, incompetent or uncaring. And there will probably always be patients who simply cannot establish a relationship based on trust. But for us to build our entire health system on the cynical premise that is the basis for the misguided adversarial approach we are now taking, is a prescription for therapeutic failure and financial ruin.