Dr. Robert A. Berenson, senior fellow in Health Policy at the Urban Institute, has considerable frontline experience. As director of the federal Center for Health Plans and Providers and acting deputy administrator at the Health Care Financing Administration (now the Centers for Medicare and Medicaid Services), Dr. Berenson oversaw policy and operational matters. He co-founded and served as the first medical director of the National Capital Preferred Provider Organization. A board-certified internist, Dr. Berenson practiced for 12 years in a Washington, D.C. group practice.

Five Questions Archives

Any tort system, and malpractice in particular, should do two basic things. It is supposed to compensate injured people and it is supposed to deter bad behavior, so that it doesn't happen again. The focus has been on one of the side effects of the current malpractice system—that some specialists in some communities are finding that they have very expensive liability insurance premiums.

That narrow focus obscures the real problem with the malpractice system—which is that it does a lousy job of compensating injured people and it doesn't deter bad care. The current medical malpractice system doesn't make patients safer. It would be nice if, instead of looking only for cures for the side effects, we looked at improving the system to deal with its basic flaws.

2. With the election behind us, what might we expect to be done to improve the medical malpractice system and what should be done?

George Bush made a big point of this issue during his campaign, and if he's claiming a mandate, it will be that we should implement the administration's proposal to put an arbitrary cap on damages. Yet, fewer injured people would be compensated under his proposal. And, capping damages would do nothing to improve care.

Sometimes terrible things happen in the operating room or through a medication error and patients don't even know there was an error. Indeed, some people sue to get information through discovery. Often, those suits are dropped once they get the information. So a much better system would be one that is fully transparent, where patients are routinely told when errors occur. And that is beginning to happen. Hospitals are becoming much more assertive at doing what they should have been doing all along, which is telling patients when they've been injured.

Jeff O'Connell, a law professor at the University of Virginia, has suggested that if, on receipt of a malpractice claim, the provider comes forward and says, 'we will make you whole for all economic losses,' a few things would happen differently. Lawyers would no longer have to get contingency fees because there is no contingency. There's no risk of losing a suit. The hospital is saying, 'we're going to cover your economic damages.' So you could immediately save a large part of the 30 to 40 percent that lawyers are claiming. And when providers make "early offers of settlements," in a transparent environment, reasonable caps on non-economic damages could apply. And then all the errors could be reported and reviewed to improve patient safety.

For right now, the lines have been drawn to either protect the status quo, which is what the Democrats support, or cap damages, as the president has proposed. Doctors support the president's approach because it may lower premiums. But it does nothing about the system's basic flaws.

3. How might the approaching retirement of the baby boomers affect the Medicare program?

I'm the first year class of baby boomers, 1946, so I know exactly when it's going to hit—in 2011, with a dramatic increase in the number of beneficiaries who need care. We will have a significant cost problem. The Medicare trustees have said so. Alan Greenspan has said so.

The problem is that the parties have not gotten serious about addressing the problem. The Republicans believe that a market-based health system with competition among private plans is the solution. And, yet, if you look at the Medicare Modernization Act [of 2003], we wind up paying private plans in Medicare approximately 116 percent of what it would cost to take care of those same beneficiaries under traditional Medicare. Not much cost containment in that policy! And the Democrats, as in malpractice, seem to be supporting the status quo and not proposing anything.

In recent years, continual research documents that a lot of spending in Medicare is wasted. Dr. John Wennberg of Dartmouth University has documented that as much as 30 percent of Medicare spending might serve no useful purpose. So far, Congress has not been serious about anything to address spending excess in Medicare.

4. What is the most alarming trend in health care today?

The biggest ongoing problem is the uninsured. But the word trend raises an interesting point, which is whether our country will ever get health care costs for individuals, employers, and taxpayers under control. Right now we have some apologists for the health insurance industry bragging that premiums are going up only 8 or 9 percent annually, which is better than the 12 to 15 percent rate of recent years. I think that when premiums double in five years, and those premiums come right out of wages, the trend of health care costs seems to be the most ominous issue. It raises the question of whether this time the traditional insurance underwriting cycle that leads to more reasonable premiums will not kick in.

Some argue, correctly, that affluent countries should spend a lot on health care. After all, what do you do with your affluence other than try to have the healthiest life possible? What's interesting is if you compare all the OECD [Organization for Economic Co-operation and Development] countries, there's a direct relationship between the wealth of the country as defined by average income and the percentage of GDP spent on health care. The United States is the outlier, spending far more on health care than our relative affluence would predict. And, it's real clear, by a lot of analyses, that we're not getting our money's worth.

5. Are there lessons for health policy from the presidential election?

I'm impressed by the huge gulf between what health policy gurus talk about and what matters to real citizens. So, for example, there's just been a proliferation of studies documenting that the quality of care is fairly mediocre. The Institute of Medicine and landmark articles have documented that and prescribed a major reform to address poor quality. Yet, we just heard both presidential candidates asserting that America has the best health care in the world.

We don't. And, in fact, even the best health care in America may not be the best in the world. People are too easily misled, especially about very complicated, data-driven evidence around health care policy. This election proved again that there is a real need for health care researchers and policy makers—with journalists—to take more responsibility for making sure that the data—the evidence about health care—is not misused. And this goes beyond just presidential elections.