Want to Reduce Health Care Costs? Raise the Bar for the Lawyers

There are several reasons behind the rising costs of health care. These factors include an aging population, excessive use of resources near end of life, the high cost of drugs, and increasing reliance on advanced technology. Another commonly cited source of rising health care costs is the current medical malpractice tort system. Although this is an important source, there are many other ways that lawyers increase health care costs that are outside of the courts and outside of public view. Lawyers are raising costs from within the hospitals and medical practices themselves. Every day hospital lawyers are costing the health care system thousands of dollars by deferring decisions that could reduce costs, and by making overly conservative decisions that increase costs.

Here are two examples in which lawyers increase the cost of what we do. A physician group recently developed a plan to switch to a single vendor and call center for outpatient cardiac event monitoring. There would be several advantages to both patients and providers, and this would also lead to improved operational efficiencies. It took one year for the practice attorneys to finalize the contract. Physicians have about 40 minutes to see a new patient in the office, review all of the medical records, interview and examine the patient, make major decisions, discuss the issue with the patient and family, document the encounter, and complete the billing forms. Why are our temporal expectations for attorneys so different? Are their decisions more critical than the decisions nurses and doctors are expected to make in minutes? Unfortunately, attorneys have no incentive to make decisions in a timely fashion, and an hourly fee for service payment system aggravates the problem. Our expectations need to change. The public should expect the same timeliness from health care lawyers as they do for other health care providers.

The second example is related to risk avoidance. Physicians are expected to weigh risks and benefits and make a clinical judgment that is in the best interest of the patient. Lawyers are not expected to make this type of judgment; they are expected to make policies that ensure zero risk. Consider an EP lab with a mapping system that is increasingly unreliable and obsolete. The hospital denies repeated requests to upgrade the system. The physicians themselves work with the vendor and arrange for a new system for a six-month trial period at no cost. The next week, a patient is undergoing a complex ablation procedure, and two hours are spent unnecessarily troubleshooting problems with the mapping system, cabling, and catheters while the patient is under general anesthesia. When the physician asked the administrators why a free loaner could not be installed, they referred to the hospital attorneys, stating that the hospital can no longer accept equipment for a trial period, because the laws state that a hospital cannot bill for services that rely on equipment that they do not own. Is that the best interpretation of the law in this situation, or is it just the one associated with no risk? The hospital bills for the ablation procedure, not specifically for three-dimensional mapping. The mapping system is just one of many tools used to perform the procedure.

Attorneys are responsible for the growing cost of health care far beyond the problem of excessive malpractice litigation. This issue needs more attention and quantification. Attorneys are costing the system valuable time by taking months, sometimes years, to make decisions related to issues that could improve efficiencies and lower costs, and are enforcing rules that are excessively conservative and risk averse. The public should be aware of this source of increasing health care costs. Everyone now expects physicians to help reduce costs. It is time we changed our expectations of attorneys who work in the health care industry. Hospital and physician practice attorneys should be expected, and incentivized, to complete contracts within one week, and should be discouraged from making unreasonable decisions that are overly protectionist and conservative.