American Journal of Law & Medicine

Medicine in the new millennium: a self-help guide for the perplexed.

I. INTRODUCTION

When Austin Powers, ace British secret agent, is thawed out after thirty years of suspended animation, he is greeted by his old boss, accompanied by a Russian general. Powers is alarmed by the presence of the Russian general, and complains about the breach of security. Powers' boss tells him "a lot's happened since you were frozen. The Cold War is over." Powers thinks for a moment, and then responds, "finally those capitalist pigs will pay for their crimes eh, eh comtrades, eh?" His boss gently interrupts, and informs Powers that "we won." Powers clumsily responds, "Oh groovy, smashing, yeah capitalism," his tactlessness prefiguring his behavior through the rest of the movie.(1) Despite Powers' noteworthy skills as a secret agent, he has foolishly disregarded the first rule of forecasting the future: don't be around when your predictions are assessed for accuracy and completeness.(2)

Legal academics rarely find themselves in Powers' position. Indeed, it is the rare law review article that includes a falsifiable claim of any sort.(3) Even if legal academics were inclined to offer predictions about the future, their reluctance to do so is wholly rational. On the supply side, law professors quickly realize that tenure committees and deans are more impressed by meta-theories and normative claims than by empirical work and futurist predictions.(4) On the demand side, if law professors had any particular skill at predicting the future, their time would be monopolized by bookies and arbitrageurs, instead of by law students.

Few law professors are foolish enough to disregard these considerations, but those who do provide more than ample justification for existing practices. The all time world champion in the category "most erroneous prediction by a legal academic" is Professor Charles Reich, formerly of Yale Law School. The conclusion of his article, The New Property, begins as follows: "The highly organized, scientifically planned society of the future, governed for the good of its inhabitants, promises the best life that men have ever known. In place of the misery and injustice of the past there can be prosperity, leisure, knowledge, and rich opportunity open to all."(5) Professor Reich's prediction was so far off the mark, the article was aptly characterized as a "lightning rod for divine vengeance,"(6) a fact that did not keep The New Property from being one of the most cited articles of all time, or the Yale Law Journal from publishing two more of Reich's articles.(7)

These considerations complicate the process of preparing a law review article on the likely path of health care delivery and policy in the next millennium.(8) Indeed, the willingness to even entertain such a topic implies the presence of a considerable amount of authorial hubris--even if one is as general as Nostradamus in one's predictions.(9) To be sure, the saving grace of such an article is that it is exceedingly unlikely I will be called into account for my predictions, barring a near-millennial stint as a popsicle.(10)

Still, rather than tempt the fates by forecasting the course of one-seventh of the United States economy and the associated legal superstructure for the next thousand years, I will instead tackle an only slightly more modest subject--offering a few self-help hints for those involved in the field of health care delivery and policy. There is ample precedent for such a self-help guide. As Professors Jack Balkin and Sanford Levinson recently noted, "the self-help book is a distinctive and long-lasting genre of American popular literature, as ubiquitous as the hot dog and as American as apple pie."(11) Those who are skeptical should pay a visit to the local bookstore, where shelf after shelf of self-help books, on subjects ranging from the optimal diet to success in business, love and every other subject under the sun may be found.(12)

Despite these precedents, I am unaware of any self-help guides for those involved in the fields of health care delivery and policy. Indeed self-help is typically dismissed or derided when it is offered as a solution to a particular problem in health care delivery and policy.(13) Virtually every proposed remedy for the ills of our health care system is cast as a global reform, to be implemented through statutes and regulations.

To be sure, the fact that no self-help guides have emerged could be viewed as the result of an efficient market (no one wants the product) or a market failure (those that might want the product don't know they need it).(14) Regardless of how one comes out on this issue, it does not follow that there is no place in the marketplace of ideas for a self-help guide--especially when the article in question is an invited submission to a symposium issue of a non-peer-reviewed journal, and I already have tenure.(15)

My thesis is quite simple: when it comes to health care delivery and policy, providers, legislators, judges, jurors and law professors/policy wonks can do better--and the fault lies "not in our stars, [b]ut in ourselves."(16) For each target group, a particular inadequacy is identified, and a self-help maxim is offered in response. If these self-help maxims are implemented, the state of health care delivery and policy will be much improved in the next millenium. How's that for an empirically falsifiable (and normative) prediction?

II.WHAT SHOULD PROVIDERS DO BETTER?

At its best, American medicine is very good indeed--although it is not nearly so good as it could be, and there are striking variations in quality which are wholly independent of cost. Several decades of health services research has made clear that American health care is dogged by persistent quality problems relating to overutilization of certain services, underutilization of other services, unexplained variations in service utilization and errors in health care practice. On the access side, forty-three million Americans are without insurance at any given time, even though we spend a trillion dollars a year on health care--half-again as much per capita as our closest competition.(17)

Consider that trillion dollars a year for just a moment. The trillion dollars in cost is also a trillion dollars in income for a host of health care providers--ranging from physicians to pharmaceutical companies, from home health care providers to hospices, from nurse-midwives to neonatal intensive care units. The most remarkable fact about the entire enterprise is that everyone involved gets paid for what they do, and not for what they accomplish.

In no other sector of the economy does such a bizarre payment arrangement prevail--and with good reason. Tying payment to outcome creates better incentives for vendors, and reassures potential customers. You are more likely to do business with someone you know nothing about if they provide a money-back guarantee, and you are unlikely to patronize a vendor who expects to get paid whether he meets your specifications or not. Yet American medicine has shown virtually no interest in such arrangements.(18) Indeed, the American Medical Association flatly condemns outcome-based payments as unethical. …

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