02/13/2014 03:38 pm ET Updated Apr 15, 2014

Howard's Daily: The Flaw of Regulatory Perfection

There's a wide chasm between those who write regulations and the humans expected to abide by them. Real people don't have the capacity or time to understand, much less comply with, scores of regulations. This is a reason why regulation so often is counterproductive. People preoccupied with rule compliance no longer act sensibly. Focus on A, as sociologist Robert K. Merton put it, and you cannot see B.

Health care delivery in America has been suffocated by bureaucracy. How this affects the daily choices of physicians is described by Victoria McEvoy from Harvard Medical School in today's Wall Street Journal. Regulations presume to guarantee proper care by forcing doctors to go down checklists of every possible treatment associated with, say, an obese child. The problem, of course, is that all this time checking boxes "takes precious time away from doctor-patient communication. Not one of my patients has lost a pound from my box checking."

Like marionettes in a dystopic puppet show, all day long physicians are jerked away from sensible patient care by regulatory mandates written without any concern for human bandwidth. But doctors aren't computers. Sometimes the box needs to be checked -- did the surgeon double-check all requirements? -- but most regulatory requirements are in service of a form of central planning, as often requiring useless activities as those that make sense.    

Follow all these rules, regulators think, and health care will be perfect. But regulations can't honor the complexity of the actual patient situation that the doctor is facing. So, when "one metric is off," regulations compel doctors to take certain actions, even where those actions make no sense.    

The fee-for-service reimbursement bureaucracy multiplies the box-checking and skewing of sensible judgment (doctors spend 30 percent of their time on paperwork). Regulatory overload in health care causes various forms of failure -- unnecessary cost, grotesque inefficiency, corrosion of professional judgment, and a palpable degradation of professional spirit.   

Then pile on top of this the ability of any sick person to bring a lawsuit against a doctor in almost any amount, without any reliable decision maker, and -- voila -- you have the world's most expensive health care system, by almost a factor of two, and perhaps the most dispirited medical professionals in the developed world.  

The solution is not getting rid of regulatory oversight, but re-humanizing it. Box checking should be restricted to high-risk activities. Ideas for dealing with this or that disease should be placed in a reference manual as guides, not as a mandatory compliance regime. Accountability should be determined after the fact, by periodic reviews based on the judgment of professionals who understand the complexities, not by rigid metrics.   

The quest for regulatory perfection, like the quest for legal certainty, does not avoid failure, but causes failure.

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