Robert P. Charrow: Fighting Defensive Medicine

By Robert P. Charrow
Wednesday, October 14, 2009; 4:52 PM

President Obama's recent speech on health-care reform called for demonstration projects to test whether malpractice reform can reduce the costs of defensive medicine -- tests and procedures that doctors order not out of concern for patient well-being but out of concern that they could be sued for malpractice. More than 20 years ago, I was a member of the federal task force on medical malpractice reform under Secretary of Health and Human Services Otis R. Bowen. At that time, our best assessment was that the costs of defensive medicine could equal 20 percent of non-hospital costs.

Whatever is done, though, should be done in a scientifically sound, apolitical way that yields useful results that can inform our trillion-dollar decisions. Toward that end, I have two recommendations:

First, demonstration projects should be designed and implemented by scientists and not politicians or lawyers or anyone else with a vested interest in the outcome. This is something better suited to members of the National Academy of Sciences, rather than the bureaucrats within the administration.

Second, if Congress cannot wait for the results of these studies before legislating, I recommend that it require any insurer providing policies as a health-insurance co-op to offer health insurance with two premium levels: one with an ordinary premium, and a second parallel policy with a significantly lower premium. Those buying the lower premium policies would waive their right to tort litigation and be required to arbitrate any malpractice claims. Ultimately, the lower premium should reflect the reduction in the costs of defensive medicine. The choice of premiums and tort remedies fits well in this era in which every politician wants every citizen to retain the right to choose.

The author is the former principal deputy general counsel of the U.S. Department of Health and Human Services.

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