04/19/2013 02:24 pm ET | Updated Jun 18, 2013


Last Saturday I was a panelist at an Adams State University Healthcare Forum in Alamosa, Colo. Some knowledgeable speakers were there including the Regional Director of Health and Human Services, a former Public Health Department head in Colorado, the CEO of a multi-location community clinic, by training a lawyer, and a progressive hospital CEO. The idea of a Health Forum was to inform the public on the many aspects of the Affordable Care Act (ObamaCare).

The facilitator moved quickly to a question and answer format to engage the audience -- with notable success.

One question from the audience about the role of lawyers in health care set off an emotional reaction on the panel... with various degrees of anger about the apparently increasing litigation in healthcare. The unanimity took me by surprise. The panel was generally aligned in favor of the Affordable Care Act. Yet, the Act is conspicuously silent on regulating the role of lawyers in medicine.

I made the point that many patients about to go into surgery feel comforted by the fact that, unlike other countries, in America your grievance can be redressed in a court of law. We take for granted that we can get a fair shake in a tort case, while in many other developed countries the courts historically have not always been even-handed (see Dickens and Dumas).

They say you don't want to see how legislation is written, any more than watching sausage being made. For instance, friends ask me why dental coverage for adults is not covered in the Affordable Care Act. After all, for many, good teeth are the key to adequate nutrition as well as healthy self-esteem. I usually duck the question, because the real answer is so disenchanting, "The dentist didn't lobby well enough in Washington."

The same could not be said about the American Trial Lawyers.

And while some lobbies are well known -- the insurance industry, Big Pharma, medical equipment manufacturer General Electric and the American Hospital Association -- the American Trial Lawyers prefer the shadows. They are Sherlock Holmes' "dog that didn't bark," and that's the way they like it. They maintain a ghostly presence in Congress and in the hospitals. Still, every member of Congress knows where to find them, and they are silent partner to almost every decision made in health care.

We have basically subcontracted quality control of hospitals to the legal profession. Internal hospital reporting systems have collapsed. Getting providers to report anonymously their medication errors or other mistakes had greatly helped improved quality of care. You let the offender off the hook, but meanwhile glean important information to set in place systemic safeguards. But with constant lawsuits, paranoia sets in and a culture of cover-up gradually seeps into day-to-day practice. Having two parallel surveillance systems, one internal and one external, is a tough trick to pull off. First you have to change human nature.

Like battered spouses just trying to dodge the next blow, hospital administrations overcompensate and set bedside caregivers to reams of self-protective documentation that, in a negative feedback loop, impairs patient care.

"Should I answer the call bell or finish the form?"

Correct answer (if you want to stay on the payroll): "Finish the form."

Defensive testing and skewed medical judgments becomes the order of the day for physicians. The physician on our panel chose C-sections as an example. They are not always medically necessary, but nobody ever got sued for recommending the option to a mother in labor.

But for the general public the question is, "How much more is added to the cost of care by the bunker mentality litigation creates?"

Hard to say.

The trial lawyers stock reply to the issue of adding to the overall expense of health care is, "Our awards are a drop in the bucket of the Medicare budget." Well, measured against the Medicare budget, Warren Buffet's net worth would be a drop in the bucket. What has never been proven in a court of law -- or in the truck loads of what healthcare intellectuals like to call "evidenced-based studies" -- are the hidden expenses of having the legal profession policing medicine.

The best line of the forum last week goes to one of the most experienced panelists, fielding a question of how affordable is the Affordable Care Act. He very professionally cited Congressional Budget Office estimates and then, returning to real life, quoted the great Yogi Berra, "Predictions are hard to make -- particularly about the future."