Medical Restraint

Atul Gawande has a terrific piece in this week's New Yorker about medical costs.  Gawande travels to McAllen, Texas, which he suggests has some of the highest per-person medical costs in the country.  On his analysis, McAllen may have fancier care than one might expect, but it does not have better care, as measured by actual patient outcomes.  What explains the high costs?  Ultimately, he suggests, has much to do with a lack of collaborative monitoring and cooperation to keep health costs down, and much to do with a lack of restraint on the part of local physicians, who "see their practice primarily as a revenue stream" and so order more tests and more frequent office visits, and perform more surgeries, whether those procedures and visits are conducive of better outcomes or not.  Gawande argues that more important than whether we have a single-payer or multiple-payer medical system is whether we have in place networks of collaborative medical professionals who practice "accountable-care" medicine.

This is a law blog, of course, and I am unwilling and probably unable to kibitz on health care policy.  But what strikes me in this article is the interesting set of connections it bears to many standard dialogues about the legal system and about the judicial system.  This week has been yet another reminder that in standard public discussion of the judiciary, one of the favorite terms is "judicial restraint."  This refers largely to the idea that judges should not reach out and make policy decisions rather than rule on "the law" -- a difficult distinction to sustain, although not a meaningless one.  But for some writers, especially the business wing of conservatism, it is also related to broader systemic effects of judicial activism, at least as it is perceived (and leaving to one side, of course, Due Process cases involving punitive damages).  A concern here, sometimes voiced explicitly and sometimes merely implicit, is that judicial activists lead to unpredictability and instability in the law and the socially inefficient overproduction of litigation.  Indeed, I think it is fair to say that at least some advocates of "judicial restraint" also believe in "legal restraint" -- in the cabining of litigation as a means of social change.  One might respond to this that the law, like other areas, is capable of being guided by the market.  If plaintiffs' lawyers are getting rich, then there must be a socially beneficial reason for it; and market forces will also cause a rise in defense lawyers' work and innovation, leading to some degree of market equilibrium between the contending forces in litigation.  Most advocates of legal restraint do not, however, take this view.  At their best, they argue that litigation causes socially inefficient externalities; at their worst, they view plaintiffs' lawyers' wealth as almost morally repugnant.  Their solution is, by and large, one of command-and-control rather than market solutions: they favor a host of "tort reforms," the narrowing of standing rules, changes in class action law, and so on, imposed from the top down.  (As a side note, it is curious how much time advocates of "legal restraint" spend focusing on plaintiffs' lawyers.  If I were the National Association of Manufacturers, or any number of other industry groups that spend lavishly on law firms and free-lunch think-tanks for the purposes of arguing against plaintiffs' lawyers, I would want to devote an equal amount of my time and money to funding arguments and reforms designed to starve big-law firms and other defense-side rent-seekers as close to death as possible.  Does AEI spend a lot of time working on ways of impoverishing the defense bar?  Or is this a simple case of industry capture?)

If I were a believer in judicial and/or legal restraint, surely I would also find the idea of "medical restraint" attractive.  Surely I would want to find ways of making doctors and the medical industry as lean, efficient, and, not to put too fine a point on it, poor as is possible while remaining socially efficient.  I might reasonably argue about whether that goal could best be accomplished through a government-oriented system or a private, or public/private-oriented, system; but surely in either case I would champion the kinds of "accountable-care" mechanisms Gawande advocates, and I would view McAllen as a serious case of market failure.  If I were willing to tolerate command-and-control mechanisms to solve inefficiencies in the legal process, surely I would at least be willing to contemplate similar mechanisms with respect to reform of the medical process.  Nor would I readily accept that tort reform alone would accomplish what I wanted; as Gawande points out, McAllen is a financial sinkhole despite the passage of tort reform in Texas.  Conversely, if I were staunchly opposed to regulating the medical industry, arguing that the market could sort these things out for itself, I'm not sure why I wouldn't be inclined to say the same thing about the legal industry.  And yet, by and large the strongest advocates of "legal restraint" are among the foremost opponents of "medical restraint."  (One could argue the converse as well: that the strongest supporters of medical reform have by and large been among the foremost champions of the plaintiff side of the legal industry, and of privately-directed legal means of seeking social change rather than leaving everything to the political process.)  

This is a tentative set of speculations, to be sure.  Still, I find interesting the dramatic disjunction in the use of rhetoric in these two areas.  If you're a champion of "legal restraint," and if you believe that shrinking the inefficiencies in the legal system demands a host of top-down solutions designed to enhance accountability in the legal system (including loser-pay rules and other methods of forcing lawyers to internalize the costs of their activities), shouldn't you also favor "medical restraint," and be willing to think about legislation and other non-market methods of achieving greater efficiencies in the medical system?  Advocates of legal restraint in some ways are eager to point to places like England and Canada, which have cost rules, caps on damages, and other legally imposed mechanisms that reduce access to justice but are argued to enhance social efficiency; so why do they not look through the same lenses at the Canadian and English health care systems?  (And, as I suggested above, vice versa?)