Atul Gawande is a 2006 MacArthur Fellow, a general surgeon at the Brigham and Women’s Hospital in Boston, a regular contributor to The New Yorker, and an assistant professor at the Harvard Schools of Medicine and Public Health. He’s also written two books — Complications: A Surgeon’s Notes on an Imperfect Science, and Better: A Surgeon’s Notes on Performance. The guy is a great writer — and if he wasn’t such a well respected physician, I’d tell him to give up his “day job” and write full time. His ability to take the complexities of modern medicine and make them understandable at almost any level are truly unique.

In Better, he writes about many things, but his chapter on Medical Malpractice is particularly instructive. His basic argument — as I interpret it — is a simple one: In the absence of a better way of finding out “what happened” when something goes wrong in a course of treatment, people will continue to rely on attorneys to advocate on their behalf, get the facts and fill in the blanks. In some cases, this will lead to litigation, while in others, it will lead to an independent rendering of the facts and circumstances surrounding a bad outcome. For many people, the latter is enough.

Gawande uses real life examples to make his points, and how he finds them befuddles me. They’re almost too perfect to be believed, and each, in its own way, illustrates the pros and cons of the current way of handling both investigations and disputes. I’m no fan of the current system — and have talked to enough physicians over the years to appreciate the negative impact it can have on practice style and clinical decision making. But I also came away from reading Gawande’s book with a new appreciation for how difficult it would be to leave people with a desperate desire to know what went wrong and why without an outlet for their anger and confusion.

Gawande references the way we pay for damages associated with children harmed by vaccines as a possible approach to medical malpractice reform. In the 1980s, the traditional litigation approach to settling disputes about vaccines got so loud and expensive that fewer and fewer companies were willing to manufacture vaccines at all. The federal government became justifiably concerned about our nation’s dwindling supply, and created a national program for payment to families and children injured by vaccines — outside the litigation system.

Today, we all pay about 75 cents for each vaccine into a fund for injured children. An expert panel lays out the injuries associated with each vaccine, and people who have these injuries are compensated for medical care and other expenses out of this fund. The program doesn’t try to separate negligence from bad outcomes — and simply pays out to everyone who falls into one of the injury categories. If someone is not satisfied, they can still sue. Since 1988, the fund has paid out over $1 billion in claims, and the market for vaccines, as well as the supply, is predictable and healthy.

And unlike traditional settlements, which are usually done behind closed doors, the program publishes data every year on what went wrong, why and what’s being done to avoid a recurrence in the future.

Gawande doesn’t presume that this kind of approach could work across the board — health care is simply too complicated and too big for that. And he seems to conclude that until there’s a better alternative to legal advocacy and litigation — which he doesn’t propose — we should accept the system we have, warts and all — as a preferred alternative to many other options.

Yes, it’s expensive — to physicians, patients, and virtually everyone involved in health care. Yes, it doesn’t always deliver dollars to people who deserve it. Yes, it can take forever to process a result (years and years, in many cases). And yes, it may negatively affect the way medicine is practiced — as physicians practice with one eye over their collective shoulders.

So what’s the alternative?

Posted by Charlie Baker in Health Care Costs, Transparency