Student Blogger - Health Law - "Horse Lawyers" or Essential Engineers?

Professor M. Gregg Bloche on the broken US health care system and what law professors can do to fix it.

Lots of people think the US health care system is in serious trouble. Health care costs are growing much more quickly than the economy as a whole. If they continue to grow at current rates, health care alone will account for 30% of GDP in 25 years and 50% in 75 years. This kind of growth in costs isn't sustainable – something clearly has to change. Even worse, quality of care isn't very good. Americans receive appropriate care only a little more than half the time, and life expectancy is lower than many countries with lower per-capita levels of health spending. As many as 100,000 Americans may die prematurely each year from medical errors. Millions cannot afford basic care, much less the expensive treatments that are driving cost increases.

None of this is news, of course. Problems with the health care system have become a major political, media, and social issue. Everyone seems to have an opinion on the problem and possible solutions. Do lawyers – or more specifically legal academics - have something to contribute to this debate? If so, what?

Professor M. Gregg Bloche (visiting Chicago this quarter from Georgetown) addressed these questions at length in his paper "The Emergent Logic of Health Law" presented at last week's Works in Progress(WiP) talk.

Perhaps not surprisingly, Prof. Bloche argues that legal scholars, and especially health-law specialists, can make an important contribution. Health law and health laws, as he points out, are a jumble of interacting, often conflicting rules, institutions, and principles. Prof. Bloche characterizes regulation of health care as an “emergent system” that legal scholars are especially well-suited to understand and reform. At the same time he acknowledges that health lawyers have to date failed to make a large impact, largely because, he argues, they have failed to appreciate this "emergent" character of the system and instead have advocated one or another "single, master design" for an improved health care system.

Prof. Bloche also offers a few concrete proposals. For example, he argues that the chief obstacle to controlling medical costs is our cultural unwillingness to set limits - that is, to deny marginally-beneficical care when it is not cost-justified. Prof. Bloche argues that solving this problem with sweeping, top-down reform would be politically impossible and incompatible with the current institutional structure of the health care system. Instead, he suggests that more incremental, narrow approaches are needed – though these can and should be directed at larger long-term goals.

For example, subsidies and other incentives for technological development could be redirected from research that tends to lead to high-cost treatments to research that tends to lead to more cost-effective treatments. Assuming this is possible, it would have a similar effect in the long-run to overt rationing of currently-available care - some expensive but not-very-helpful treatments would be unavailable to some patients. From one point of view, this approach moves decisionmaking from a time when bad decisions are likely (when there is a sick patient in the room) to a time when better decisions are likely (because they are separated both in time and by aggregation from that sick patient). From another point of view, the approach conceals its effects in order to appear politically acceptable (though this is, of course, a common political move).

Commenters at the WiP had a variety of questions and criticisms of the paper. One theme discussed was raised by Prof. Bloche himself - the "law of the horse" problem. Named for Judge Frank Easterbrook's famous dismissal of "cyberlaw" as a discipline, the issue here is whether "health law" is a
necessary or useful separate field of study. Prof. Bloche's paper is written in large part as a response to this criticism of the field, but not every participant in the WiP was convinced. Some argued that the changes in the health care system advocated in Prof. Bloche's paper, however innovative or promising, are not strictly legal - they could have been proposed by other players - doctors, public policy scholars, economists, etc. Prof. Bloche's response was to say that legal scholars, unlike many other players who are more narrowly-focused or beholden to stakeholders, have an independent perspective and a broad view of how health care and regulatory governance interact. While my experience with law professors, particularly at the WiP events, has taught me that they are a pretty independently-thinking bunch, I'm not so sure that perception carries over to the general public or even other health experts. Lawyers do not have a great reputation in the health community. Lawyers do, of course, have institutional design skills that those in these other fields may lack (doctors, in particular, have a bad reputation in this area, though it is unclear whether it is deserved).

In a similar vein, other commenters questioned what Prof. Bloche's characterization of the health care system as "emergent" added to his arguments. Does this mean anything more than that the system is complex? That changes might have effects well beyond those intended? What does a reformer of an emergent system have to do differently? Are those things we didn't realize until we used the "emergent systems" model, or things that were already obvious? To put the question a different way, could you excise the discussion of "emergent" systems from Prof. Bloche's analysis and still appreciate the value of his policy prescriptions and arguments about the role of lawyers?

Other commenters also criticized specific elements of Prof. Bloche's policy proposals. One, for example, questioned whether we would be able to tell, in advance, which research would be likely to lead to cost-effective treatments (and which therefore, according to Prof. Bloche, should be supported instead of other research). Who decides? How? Do we have the good data about what spheres of research are best, or does research just seem to proceed serendipitiously? Prof. Bloche responded that lack of information is certainly a problem, possibly the key one in health care reform, but that there is enough good information to make at least some useful distinctions now.

Another commenter responded to this last point by comparing health care to other industries perceived as wasteful or failing, such as education, and expressed skepticism about whether more transparency and information would really help solve problems. Other industries, with education again as the best example, are awash in information yet are still ineffective and inefficient. Why should health care be different?

As with all papers presented at the WiP, Prof. Bloche's is still in the process of evolving. It will be interesting to see how he responds to these and other criticisms as that process continues.