There are solutions to the Tower of Babel health care crisis that our medical profession and patients currently face. Those solutions, in some cases, are already in place. Years ago, a federal law to guide self-funded health insurance plans helped reduce disparities in the health care system. The Employee Retirement Income Security Act of 1974 (ERISA) was designed by the federal government to impose limits on health care litigation. Under this act, no individual can receive compensatory or punitive damages. Beneficiaries are entitled to the costs of medical benefits.
The uniformity of a national system succeeds under ERISA because health funding plans were not required to write fifty separate and distinct documents in accordance with state laws. Indeed, from an administrative standpoint, it is easier to work through the federal court system for health care reform. The federal court promulgates one universal common law standard, rather than wrangling with laws that differ on a state-by-state basis. Uniformity sometimes works best through simplicity.
The key solution might be uniform national legal standards. Such standards could bridge the gap between the legal and medical professions. Uniformity could improve care and reduce injury and malpractice expense, and case law exists to demonstrate this. In Helling vs. Carey (U.S. Supreme Court 1974), a young patient lost sight in one eye because doctors failed to test for glaucoma. The medical standard at the time was to not screen for the disease in patients under age 40, because of its rarity in this age group. The court found that reasonable, common-sense medical testing for glaucoma must be performed, regardless of age. The case serves to illustrate the confusion that can arise in the absence of a global standard of care. Physicians assume that they are governed and protected by practice standards, established by specialty societies and medical training. However, mere compliance with practices considered to meet the medical profession’s standard of care is not enough to insulate practitioners from medical liability. A global standard of care must reach across not only state lines, but also age, race, education and socioeconomic barriers. We must blend the teachings of law and medicine to educate all providers with one standard that raises the quality of care across the nation.
We also must remove medical decisions from the influence of government, corporations or HMOs, and return control of treatment to doctors’ hands. This point is emphasized in Wickline vs. State (California court of Appeal 1986). That case concerned a patient who was discharged too early from the hospital because the patient’s HMO insisted. The early discharge resulted in the patient losing a leg, and, consequently, a slew of medical costs that were ultimately shouldered by the U.S. tax payer. No savings resulted from the early discharge. We, as tax payers, face the unintended drain on our collective resources from such actions. In our quest for a national standard of care, we must be mindful of the harmful ramifications of cost-containment and make physicians, and not insurance companies, the decision-makers in patient care. After all: Physicians are the ones who have been trained to provide care, with specialized knowledge and skills for practicing medicine.
A uniform health benefit policy and reimbursement structure is also necessary to reaching a solution to the current health care crisis. The truth is, doctors cannot just be doctors anymore. Physicians are obligated to consider insurance payment issues when administering treatment. Yet, it is impossible for physicians to know and understand the rules and limitations of hundreds of different insurance policies, particularly when those policies themselves vary inherently from state to state. If we had a uniform health benefit policy and reimbursement structure, it would be easier for physicians and patients to work through the seemingly endless maze of restrictions and regulations that characterizes our current health care insurance system. This maze extends to multiple parts of the system. For instance, enrollment is costly to businesses that must re-enroll new employees who are already enrolled in insurance plans from their previous employers. Business, including private and public employers, could save thousands of dollars if employees were allowed to keep their insurance plans, even across state lines and employers.
Another solution can be found in the concept of a health care “team.” In Sword vs. NKC Hospitals (Supreme Court of Indiana 1999), it became clear that the public views hospitals’ staff as a “team” of providers that share responsibility for care. The case established the public’s expectation that a medical institution and its staff work as a unit, and that care delivery is no longer about the individual acts of doctors and nurses. This “team” approach characterizes health care today. Like a symphony orchestra, the health care team must work together in concert. Yet unlike the symphony, health care providers rarely, if ever, practice together as a team. This is the reality of health care today as evidenced by agency nurses, contracted therapists, temporary rental equipment, locum tenens emergency room doctors and the new crop of residents and interns every year. No one knows each other, and this lack of familiarity impacts patient safety. Airline industry studies have demonstrated that flight crews that refer to each other on a first name basis have the best safety records. Those good records could be due to the comradeship developed by working closely together on the same flights, according to experts.
Imagine if you took a group of professional musicians and informed them that they would have to perform together at an extraordinarily important concert, but without first rehearsing. Their response would most likely not be positive. The same principle applies to health care. To achieve higher quality standards of care and patient safety, a team effort must be established to create uniformity, thereby meeting the same standards across the country, from the smallest towns to the biggest cities. It is not only patients’ health, but also their lives, at risk.
In addition, a federal liability system could serve to reduce the burden of high cost malpractice insurance, lifting the expense from a few providers to multiple providers, by spreading the risk to larger health care enterprises across the nation. Under this national enterprise scenario, we would not sue individual doctors and nurses, but would instead hold larger health care organizations responsible for quality care or lack thereof. Such a scenario paves the way to simplify the insurance underwriting process, and helps reduce the burden on good doctors who must pay for the actions of bad doctors. In a federal system, if a nominal amount of tax dollars contributed to a liability fund, our medical malpractice crisis might subside. Those who deliver and those who receive health care then become vested in quality care, making health care a team sport instead of a superstar sport.
Another effort, telemedicine, might also be a solution to the lack of uniform standards. It serves as a catalyst to create standards across the nation through direct communication in different states. An array of diagnostic and treatment data can be transmitted – even from orbiting spacecraft – to the most remote areas, ensuring that new technology and services reach even the most underserved of populations. In line with this trend, the Veterans Health Administration has adopted a set of uniform standards for the electronic exchange of clinical health information across the nation. Interoperability between computer platforms and web-based programs is essential to cross the translational barriers inherent in these systems. The future lies in standardized information exchange, allowing public health officials to identify emerging threats and approach them swiftly and efficiently, such as in treating the H1N1 flu. Standardized information exchange also makes possible the prospect of portable electronic medical records. Rendering the health care process more orderly and uniform throughout our country imparts momentum to tertiary care centers, enabling them to deliver advanced care to even remote locations.
Uniformity helps balance the glaring disparities across state lines. Federal doctrines of health law could help guide educators and providers to deliver quality care by clarifying exactly what constitutes the expected universal standard. It helps us to simplify. I believe that encouraging the trend for standardization, uniformity and simplicity can lift us out of the quicksand of bureaucracy, toward a more truly universal standard of health care.
While the government is surely to blame for the current health care crisis, and corporate private health insurers have helped contribute to the mess, the confusion of competing languages in health care’s Tower of Babel syndrome could be quieted by creating a universal health care language, understood by all.