White House Director of the Office of Management and Budget Peter Orszag

Former Office for Management and Budget Director Peter Orszag recently wrote an opinion piece in The New York Times on the need for medical malpractice reform. Well, kind of.

Orszag’s approach has more to do with creating stricter mechanisms to enforce physicians’ compliance with evidence-based guidelines than with reforming the tort system to better protect doctors and patients.

Orszag writes, “What’s needed is a much more aggressive national effort to protect doctors who follow evidence-based guidelines. That’s the only way that malpractice reform could broadly promote the adoption of best practices.” He describes malpractice reform as a way to “encourage doctors to adopt new evidence more quickly.”

Medical malpractice reform should not be used as a guise to implement policies that would standardize medicine and limit physicians’ autonomy. Orszag’s plan would require comparative effectiveness research (CER), which looks at “what works and what doesn’t,” to determine guidelines. CER is a useful tool to aid physicians in determining the best treatment option for a patient. But using findings to compel physicians to act according to “best practices” would diminish the role of patients’ personal preferences and physicians’ training and experience in decision-making. If physicians could escape legal liability for following evidence-based guidelines, they would surely feel significant pressure to act based on the evidence far more and on their best judgment far less.

Moreover, evidence-based guidelines do not have the capacity to dictate the best course of treatment for every case. In the Huffington Post, Joanne Doroshow of the Center for Justice and Democracy writes:

The reality is that no matter who writes them, it is impossible to develop single authoritative guidelines for every medical condition, let alone to trust any entity to suddenly become the sole arbiter of acceptable medical practice. It is estimated that more than 1,400 sets of clinical practice guidelines exist today. While some standards, such as those in anesthesia, are clear and easily complied with, others, such as in obstetrical cases, are complicated and can be contradictory. Moreover, as they are written for “average patients” and cannot encompass the huge variation in how patients present, there may be good reason to vary from a guideline’s recommendation for a patient.

Strong financial incentives for doctors to adhere to guidelines are already included in the Patient Protection and Affordable Care Act (PPACA). As Director of the Congressional Budget Office, Orszag testified before the Senate Finance Committee that “to alter providers’ behavior, it is probably necessary to combine comparative effectiveness research with aggressive promulgation of standards and changes in financial and other incentives.” Under the PPACA, Medicare will penalize hospitals through reduced reimbursement rates based on their performance on quality measures. Introducing the use of guidelines to medical malpractice reform would have an even stronger effect on patients and practitioners.

Orszag’s article does not do justice to the very real need for medical malpractice reform. To solve the medical liability crisis, former Heritage health policy fellow Randolph Pate explains that states should reform their malpractice systems in order to best address the critical demands of each:

Options for states include rationalizing and refocusing malpractice awards to compensate quickly for economic losses like lost pay and medical bills, reserving punitive damages for the small number of warranted malpractice cases, and limiting attorneys’ fees to guarantee that patients get the highest possible proportions of awards in medical malpractice cases. … States may also wish to consider creating patient indemnity insurance, a new breed of insurance that would compensate for injuries at a level chosen by the patient. States should mix and match the solutions presented in this paper, tailoring reforms to meet specific challenges.

Medical malpractice reform is necessary to reduce unnecessary spending in the health care system and ensure that patients safely receive the care they need while concurrently protecting physicians and their practices. Orszag’s proposal instead treats malpractice reform as an avenue to achieving the broader goal of standardizing the practice of medicine.