Over the past year or so, we began detecting some subtle changes in how Democrats were talking about malpractice. They weren't embracing the Republican tort reform agenda, weren't about to start limiting damages and saying "Sorry Charlie" to people who had suffered heartbreaking harm. But they weren't just changing the subject either. They were recognizing a problem, and considering solutions. Liability problems as well as larger obstacles to addressing serious patient safety problems.

We posted about it a few times (here and here). I started reading more about it, and I started talking (and listening) to what doctors had to say. Not just lobbyists for doctors, but doctors. Including some progressive docs in primary care who favor health reform or a single payer system. I have a piece online in American Prospect today, outlining some alternatives to traditional malpractice lawsuits that are worth trying. (Not to replace the current court system, but to test alternatives. And while we test alternative dispute resolution or other approaches, it should be voluntary.) One of my conclusions was that malpractice is getting in the way of all sorts of other things we need to do to fix our system. Getting in the way politically and economically. And getting in the way of  some of the changes we need to make to create a system that is safer, evidence-based, and less wasteful. Some doctors will resist changes to the system -- because change is hard, or change is something that they don't think applies to them, or, for some doctors in some settings, change can sock them in the wallet. Getting the malpractice piece out of the way, or at least minimizing it a bit, may remove the legal smokescreens and let us get to the heart of the change resistance.

The CBO recently did its first estimate on the price of defensive medicine. I left out that figure from this article because it was based quite specifically on potential savings from Republican legislation ($11 billion a year). I don't think there is an agreed upon overall estimate that defensive medicine in the current system costs -- to federal health programs, the privately-insured, the doctors. But for readers who want a summary of some of the recent literature on this, Factcheck.org has a good wrap.

The approaches I mentioned -- health courts, "disclose and apologize" and certificates of merit -- aren't the only ideas floating around. As we do more comparative effectiveness research, and learn more about what doctors should be doing and why or why not, we may be able to weave more "safe harbors" into the legal system.  Right now, as all the current confusion about prostate screenings and mammograms illustrates, we still have a lot of trouble agreeing on and comprehending best practices.

In the near future, we're going to post a bit more on patient safety (which we wrote about the other day) and have a bit more to say on the AMA's evolving views on malpractice and health reform. For now, we're going back to watching the Senate....