“But what about tort reform?”

My standard speech on the future of health care analyzes implications of five top trends that are shaping the future of health care.  The “malpractice crisis” isn’t one of the transformative forces I address—which almost always causes someone in the audience to ask, “But what about tort reform?”  I believe that professional negligence is a big problem, particularly in terms of the resources that it wastes, but the political process is not likely to solve the problem in the foreseeable future. 

I tell health care leaders to focus instead on trends they can harness to the benefit of their organizations and, above all, their patients.  The transformative trends in my crystal ball are advances in medical science, networked information systems, shifts in demography and epidemiology, new organizational arrangements for health systems (especially partnerships with payers and purchasers), and changes in the payment for medical services (more than just health reform).  Resources and time are stretched to the limits these days, so my economist’s world view suggests we should put our efforts into these areas that offer the greatest potential returns.

Tort reform doesn’t offer high marginal returns; it’s a political quagmire.  We should concentrate elsewhere, remembering that the #1 cause of malpractice claims is malpractice.  Reducing the number of medical errors and other forms of professional negligence is a much more productive way to lower the costs of malpractice.  I’ve got nothing against the Plaintiff’s bar, but I’d love to force malpractice lawyers into another line of work by eliminating any basis for the suits they file.   

Knowing what we know today, health care leaders can do the most to end malpractice suits by adopting proven performance improvement tools, supported by state-of-the-art information technology.  Executives and clinical leaders should strive to make sure that all service delivery is guided by formal, functioning, accountable, and pervasive processes that identify any deviations from their organization’s standard practices, immediately followed by corrective actions to prevent unexplained variations from happening again.    

Admittedly, medical mistakes will still occur, but good information and performance improvement systems dramatically reduce the probability of errors and keep them from occurring over and over—a highly desirable outcome that the legal system is not designed to produce.  Once we have set up systems to do things right all the time, we can then start the equally important task of finding the least-expensive ways to do them. 

So what about tort reform?  The American jurisprudence system unquestionably adds to the high costs of our health care, but improving clinical practice offers a much bigger and faster bang for our buck than trying to change legal practice.  I vote for putting our scarce resources into modern information systems and performance improvement.  What about you?