I often attend health policy discussions. I am usually the only physician in the room. My colleagues lament they just do not have time to make their voices heard. As healers, our first duty is to care of the sick and disabled; and to provide comfort when we have little else to offer. I hope the public will listen to one doctor’s voice.

We have many problems to solve: access to healthcare for the uninsured; affordable premiums for those with coverage; outcomes that provide value and keep patients safe. These goals can be realized.

Let me set the stage for a proposed solution; one that can easily complement any number of other proposals.

This year, tens of thousands of physicians will receive a sobering letter. The summons will claim the doctor recklessly, negligently, and with wanton disregard for safety injured his patient. The poor doctor will not recognize this butcher in print and might not even remember the patient, now a plaintiff. The doctor will never forget this day. And this day will have expensive consequences for all of his future patients.

Fear of litigation is ubiquitous. The experience is so odious we physicians will do almost anything to avoid repeating it. We will order tests, perform procedures, and recommend referrals, all to prevent sitting in front of a jury. As one ER physician put it, “I will scan patients until they glow if it will keep me out of court.” And there are 800,000 of us who are fully capable of ordering just as many tests and referrals as the fictional TV character, Dr. Gregory House. We euphemistically label it defensive medicine.

Defensive medicine eludes easy definition, but it is pervasive. Some defensive tests provide value to the patient. Some paradoxically put the patient in harm’s way. Most of the time, no value accrues, just cost and inconvenience.

Combine defensive medicine with a sub-critical mass of health information technology, and the formula is complete for overpriced, idiosyncratic, fragmented care. That said, we can harness the tremendous emotional energy surrounding litigation for more positive ends, benefiting all stakeholders. Let me explain.

Healthcare is a partnership between stakeholders (patients, physicians, and payers); each with different needs and wants.

Patients want lower health insurance premiums without sacrificing timely access to physicians or safety. If something untoward happens, they do not want to lose their home.

Physicians want protection against meritless lawsuits, lower professional liability premiums, and to be front and center in developing the care pathways for managing patients. If they deliver superior outcomes, they want to be paid more.

Payers (insurance carriers, business, and the government) want care delivered in the most cost-effective way possible.

These goals are not mutually exclusive.

We proposed a model, HealthCare 2.0, which relies on a contractual interaction between the various stakeholders. Patients (consumers) purchase a modified health insurance policy. That policy includes transferring a potential future right to sue – to the payer- or more accurately- to a neutral third party. In exchange, the patient receives not only health insurance, but a disability and life insurance policy. If a patient is injured, he receives a near-term predictable remedy. Not a lottery jackpot, but enough to carry on. He also pays a lower premium. And the system guarantees implementation of health information technology, including patient safety systems.

The payer (neutral third party) now has the ability to sue the doctor down the road if something goes wrong. To minimize any untoward outcomes, payers enter into an agreement with physicians. If the doctor follows cost-effective algorithms, developed bottom up with substantial physician input, the physician is effectively immunized from litigation. If these algorithms are not followed, the doctor could document why. It is only the combination of the physician ignoring the pathways, associated with a breach in the standard of care causing damages, that puts the physician at risk for litigation. Some or all of an award from such litigation could be passed back to the patient.

Physicians would be armed with knowledge of how to predictably avoid an adversarial legal process. The conventional tort system remains as a backstop incentivizing the doctor to voluntarily embrace efficient best practices. Care will be more consistent and patients will be safer. Dollars will be saved.

How much? We ran a sophisticated financial analysis on such a proposal. The system saves enough cash to bundle the disability and life insurance policies at no extra cost; pay for health information technology infrastructure and maintenance; with enough money left over to buy a health insurance policy for every uninsured American. The model ran Monte Carlo simulations that demonstrated if physicians are properly incentivized to follow efficient best practices, there is enough money left over to prefund these initiatives. Monte Carlo simulation is a computer model that generates thousands of probable future outcomes. The simulation looks at a number of inputs combined in ‘‘random’’ order. As a result, it is designed to account for the uncertainty inherent in complex systems such as health care.

The simulation concludes that by providing a formula for decreasing frequency of litigation, patients can paradoxically be safer, have better access to care, and have broader remedies if they are injured. Where the conventional tort system arguably has failed, namely in maximizing patient safety and making those who are injured whole, a reformed system that more often than not keeps doctors out of court could succeed.

While on first blush, the system is financed by decreasing or eliminating the practice and the costs of defensive medicine, the opportunity is much broader. Intertwined with the concept of defensive medicine, but separate, is savings associated with implementation of efficient best practices. Across the country there is considerable variation in practice patterns. This variation imposes considerable costs without a requisite improvement in outcomes. For example, at the population level, Medicare patients with severe chronic illness in higher-spending regions receive more care than those in lower-spending regions but do not have improved patient survival, quality of life, or access to care. In fact, their outcomes appear worse . It is reasoned that embracing best practices would improve clinical outcomes at a lower cost; in other words, improve patient safety at a lower cost. Although pay-for-performance programs have been proposed as one way to coax physicians to embrace efficient best practices, an equally powerful incentive would include a solution to litigation.

This model has been vetted and received warmly by those on the left and the right. I want to address three concerns.

In the model, what happens to dangerous doctors? Most doctors who are sued are not repeat offenders. To the extent individual physicians pose a recurrent danger, their care would be reviewed, and action would be taken, on an administrative level.

Isn’t the model cookbook medicine? No. Almost no clinical algorithm is applicable 100% of the time. Nonetheless, physicians must use their judgment 100% of the time. Physicians need latitude to deviate from algorithms. The proposed model allows such deviation if, in the physician’s clinical judgment, it is the right thing to do. There, the physician has contemplated the algorithm and consciously avoided its use with his patient. In such a setting, he is presumably doing so because he believes it is in his patient’s best interest. Such deviation will not trigger litigation.

How will plaintiff’s attorneys react? This model has been reviewed by a number of seasoned veterans. To their credit, those surveyed find much to like, preferring a bottom-up contract based approach to a top-down legislative dictate. Further, the current paradigm is a high stakes, high risk, long term game of poker. By the time a case gets to trial, an attorney has spent tens of thousands, sometimes hundreds of thousands, of his own money. He has to hire experts, attend depositions, file motions, and more. And, he often loses in court. If the system were more predictable and transactional, even attorneys could find a great deal to cheer about.

The outline sketched above just scratches the surface. There are many more details. We live in a time of great change. Any model that earns the support of physicians, patients, payers, and attorneys might actually be the change we have been waiting for.

Dr. Segal, a neurosurgeon, is the founder and CEO of Medical Justice Services.
Medical Justice Services is a member organization of Center for Health Transformation.

1 Fisher E, Wennberg D, Stukel T, Gottlieb D, Lucas F, Pinder E. The implications of regional variations in Medicare spending. Part 2: health outcomes and satisfaction with care. Ann Intern Med. 2003;138:288–298.