Harmonizing the Affordable Care Act with the Three Main National Systems for Healthcare Quality Improvement: The Tort, Licensure and Hospital Peer Review Systems
Katharine A. Van Tassel
University of Akron, School of Law
September 23, 2012
Brooklyn Law Review, Vol. 78, 2013
U of Akron Legal Studies Research Paper No. 12-19
In 1999, an Institute of Medicine report revealed the startling news that treatment errors in hospitals were the cause of up to 98,000 deaths annually. In a recent update on this situation, a Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade . . . . That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.” The IOM report and the follow-up Consumer Reports investigation published over a decade later suggest that the three main systems in the United States tasked with improving the quality of patient care — the state medical malpractice and licensure systems and the private hospital peer review hearing system — are all failing at their missions.
One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of empirical studies suggests that this customary care model of medical practice has a profoundly negative impact on the quality and cost of healthcare. The customary care, or eminence-based, model of medical practice is based on physician preference and not on objective, scientific evidence.
The quality and cost problems with the customary care model have led to a new, national push to move the United States to a modern, evidence-based model of medical practice through major changes in the government provided healthcare, including the VA Hospital System, Medicare and numerous, multi-billion dollar new programs created by the Patient Protection and Affordable Care Act of 2010 (ACA), also known as Obama Care. The evidence-based model of medical practice is grounded in empirical data generated by clinical outcomes and effectiveness research which suggests the optimum treatment for a rapidly growing number of clinical conditions. This use of empirical data generated through scientific methodology to make medical decisions shows great promise for enhancing quality of care while decreasing the cost of care.
This Article explains how the three major, national systems for improving healthcare quality that have long-existed in the United States - the state medical malpractice system, the state licensure system and the private hospital peer review system - are undermining the federal efforts to encourage the adoption of evidence-based medical practice by adhering to the use of customary care as the exclusive proxy for quality of care. Thus, these systems are acting instrumentally to encourage the perpetuation of custom-based practices. This Article makes specific suggestions of how to harmonize these systems with ACA and other federal programs, allowing them all to work in tandem to encourage physicians to adopt the evidence-based model of medical practice in order to improve healthcare quality, cost and access.
Number of Pages in PDF File: 39
Keywords: affordable care act, Obama Care, cost of healthcare, quality of healthcare, access to health care, clinical practice guidelines, evidence based medicine, personalized medicine, tort system, hospital peer review, medical licensure
Date posted: September 23, 2012 ; Last revised: July 4, 2013