John C. Goodman

During the debate over ObamaCare, more than one critic charged that government panels would make life and death decisions affecting patient care.

Now it seems the Obama administration is contemplating something that is even scarier: doctors would be given immunity from malpractice lawsuits, but only if they practice medicine according to government guidelines. The pressure would be enormous. Have you ever met a doctor who wanted to be sued?

The original "death panel" charges were not entirely baseless. Former Senator Tom Daschle, who wrote the blueprint for health reform, advocated a "comparative effectiveness" agency that would decide which medical procedures were worthwhile and which ones were not. As a model, Dashiell pointed to the National Institute for Comparative Effectiveness (NICE) in Britain. How are patients faring under that regime? According to the World Health Organization, about 25,000 British patients die prematurely every year because they do not have access to cancer drugs that are routinely available in the United States and continental Europe.

There is no similar agency with comparable powers under ObamaCare. But there are many ways in which the same results can be achieved indirectly. For example, Medicare has announced it will start paying more to hospitals that follow a dozen procedures, including administering antibiotics prior to surgery and anticlotting medication to heart attack patients. It will pay less to hospitals that don’t comply. The same thing is about to happen to doctors. Those who comply on up to 194 different metrics — including adopting electronic medical records — will get higher fees. Those who resist will get lower ones.

These are examples of a much larger trend: Washington telling the medical community how to practice medicine. Even though a recent study finds little relationship between the inputs Medicare wants to pay for and such outputs as patient survival, and even though the latest pilot programs show that paying doctors and hospitals for performance doesn’t improve quality, we are about to usher in the era of big brother medical care.

Remember these words: "evidence-based care." They are likely to be very much a part of your future. IF you are elderly or disabled, odds are that Medicare will eventually refuse to pay for any procedures that aren’t evidence-based. If you get health insurance at work, your employer will probably do the same. If you buy your own insurance, you won’t have much choice about the matter. The only health insurers that will be allowed in the new (ObamaCare) health insurance exchanges — certainly the only ones that survive — will be those that limit coverage to evidence-based care.

Before long, virtually all doctors will be practicing only the kind of medicine the health plans cover. After all, most doctors like to get paid for what they do. If that’s not incentive enough, the Obama administration has a medical malpractice carrot and stick it wants to try out. If doctors follow protocols and guidelines developed by committees of experts, they will be immune from lawsuits. If they don’t, they will have to take their chances.

This idea was first proposed by President Obama’s one-time top economist: former Office of Management and Budget director, Pete Orszag. Writing in The New York Times over a year ago, Orszag proposed to give doctors a safe harbor against lawsuits if they followed evidenced-based guidelines. That idea has now been incorporated in a memo to the president, written by former health advisors Nancy-Ann DeParle and Susan Scher.

So what’s wrong with evidence-based medicine? Wouldn’t you want your doctor to make decisions based on scientifically verified evidence?

Think about the calendar you keep on your laptop or your cell phone. It’s probably an invaluable aide to help you organize your life. Now suppose that instead of being your servant, the calendar becomes your master. What if there were a rule that says you can’t do anything during the week unless it is on the calendar by Sunday? Call this "calendar-based scheduling." Instead of being an aid, the calendar would quickly become an oppressive barrier to your freedom of action. The same principle applies in medicine. Protocols and guidelines can be helpful or harmful, depending on how they are used. And there are five reasons why such guidelines — in the wrong hands — can reduce the quality of care you receive.

First, most of what doctors do has never been subjected to clinical trials and peer reviewed studies. There has never been a double blind test of the benefits of setting a broken leg, for example. Most of what doctors do is what they and their colleagues have found to work. A study by the Institute of Medicine, for example, concludes that "the evidence base on the effectiveness of most health services is sparse."

In another Institute of Medicine study, researchers found that fewer than 20% of the American Heart Association/American College of Cardiology heart disease management recommendations "are based on a high level of evidence." If doctors were forced to do only those things that are evidenced-based, patients would be deprived of most of what doctors do.

Not only are there no treatment guidelines in most areas of medicine, where there are, they are often unreliable, conflicting and incomplete. Even for something as straightforward as deciding when women should get mammograms there is conflicting advice. If insurers have to choose among conflicting and inconsistent guidelines, which ones do you think they will choose? The ones that cost them less money, of course.

Second, even where there are well established guidelines, they are inevitably written for the average patient. But suppose you are not average. Is your doctor free to step outside the protocols and give you care based on her training, knowledge and experience? Or will she be pressured to stick to the cookbook, regardless of how the patient fares? Health plans always say that doctors are free to step outside the guidelines if they have good reason for doing so. But if the doctor is forced to fill out multiple forms and jump through lots of hoops, many will conform to the guidelines even if that’s bad for you.

Third, guidelines are often written by people who are not disinterested. One study found that 56 percent of the doctors who helped write guidelines for treatment of heart ailments had potential conflicts of interest.

Fourth, evidence-based guidelines are based on studies; and these studies often exclude entire segments of the population. For example, a large number of studies of patients with heart failure excluded elderly patients, even though most of the people who have this problem are elderly! If you are an elderly patient do you want your doctor to follow procedures that were based on studies of patients 30 or 40 years younger than you are? According to Don Taylor, a health policy analyst at Duke University, it is not at all unusual to exclude patients with characteristics and conditions from clinical trials who are then subjected to the guidelines after the trial is over.

Finally, the whole idea behind guidelines and protocols is that it is appropriate to treat patients with similar conditions the same way. But individuals are individuals. They don’t always respond to treatments the same way. For substance abuse, for example, there apparently is no such thing as a protocol that works for diverse groups of patients.


John C. Goodman

John C. Goodman is Senior Fellow at The Independent Institute and author of the widely acclaimed book, Priceless: Curing the Healthcare Crisis. The Wall Street Journal and National Journal, among other media, have called him the "Father of Health Savings Accounts."