I would like to take a moment, on the 5th anniversary of chapter 58 of the Acts of 2006 (better known as the Massachusetts health reform law) to thank some of the people responsible for making it happen. (Some of these are people I know personally, having interviewed them for a paper in graduate school. Some, like Mitt, I know only by reputation).

From the Great and General Court:

In the Massachusetts State Senate:

Former Senate President Robert Travaglini (D Revere)

MA state senator Richard Moore (D Uxbridge)

In the Massachusetts House of Representatives:

Former MA House Speaker Salvatore DiMasi (D 3 Suffolk (Boston)) (He may be a felon, he may not, but he helped make it happen. And as yet, he is presumed innocent, remember).

Representative Carl Sciortino (D 34 Middlesex (Medford/Somerville))

And let’s not forget:

From the Governor’s Office:

former Massachusetts Governor Willard Mitt Romney (R still not POTUS)

Yes, folks, Mitt Romney, former governor of Massachusetts and becoming perennial presidential candidate, was one of the primary architects of chapter 58. And honestly, I think that’s an achievement he ought to be proud of; he reached across the aisle, worked with people who thought differently than he did, and made something happen. He thought outside the box, and helped push it through. For those who feel it’s an unwarranted intrusion into your lives, think for a moment what kind of health reform a Democratic governor, working with a Democratic legislature, might have passed.

I’ll wait while you stop shaking.

There, feel better?

Seriously, I’m really bothered by the fact that Romney feels like he needs to hide one of his biggest accomplishments. If I were advising him, I’d say something like this: “Mitt, listen. Give up attracting the base of big donors who hate the law; they’ll never forgive or forget, and you’ll never be president that way. Go out there, and tell people how proud you are of having made that happen. How it shows you can work with Democrats, and that you’ll work with anyone with a good idea, in order to get the people’s business *done*. Because that, sir, is what people want. In the end, only the fringe is interested in all the he-said-she-said crap that’s been passing for governing recently. Most people want you to work together, find ways to reconcile your differences, and MOVE THE HELL ON. (Anyone remember what MoveOn started as? It was a group which wanted to Move On from the whole Lewinsky scandal, viewing it (correctly in my opinion) as a distraction from the serious business facing America at that time. Perhaps if we had, we might have addressed some of our current problems before they asplode all over the landscape. I’m not fond of what they’ve become in a lot of ways, but when they started I was all for them).

Really, we need to stop fixing the blame. It’s what we think we’re good at, when in fact we are not; the finger of blame points all ways, really. It’s time, folks, to fix the problems. In my sole opinion,  in 2006, Romney, a few policy wonks, and a couple of reps and senators got together, and worked out a compromise health restructuring which was a model for the nation. Was it perfect? Oh, HALE no; it sucked in a lot of places. But that’s the nature of making law; like so many things, lawmaking is an iterative process. Make a law, then tinker with it to make it work, or keep it working in the face of changing circumstances. And occasionally, you truly do need to scrap something and make new, because the topsy you create through endless iteration can, unless done very right, end up eating you. But in my sole opinion, chapter 58 was pretty good for a first attempt. And Mitt was one of the architects.

Well done Mitt.

So, the lawyers lost a round this week. Makes a body feel pretty good, honestly.

The New England Journal of Medicine, always my go-to journal of record, published a research piece this week (click the prior link, or find it at N Engl J Med 2011; 364:1243-1250) in which the investigators compared nursing homes which were sued often versus those which were sued infrequently. The question was whether the nursing homes which were sued more often had objective indications of poor quality based on national data sets. The short answer: no. Being sued had no correlation to your quality data; homes which had good quality were sued just as often (pretty much; there was *some* correlation, but not much). One of the most telling lines in the study was this: “Nursing homes with the best…records [top 10%] had a 40% annual risk of being sued, compared with a 47% risk [of being sued] among nursing homes with the worst…records [bottom 10%].”

Now this may sound like a success story in some ways; I wouldn’t blame you for thinking so. The lesson I take from it, though, is that litigation (which is expensive and heartbreaking for everyone except the lawyers) is a poor discriminator of who is good and who is not. And I personally believe that this poor discrimination stands in the way of true quality improvement, because if you are a nursing home (or a doctor, or a hospital), you look at this result and say “Why spend all this money on improving quality when we’re going to be sued anyway?”

If you answer “Because it’s the right thing to do”, you’re certainly not a hospital administrator, because the doing right thing balances no budgets, and increases no revenue, and improves no quarterlies, and those are the job performance indicators of the hospital administrator, just like anyone else in a business. And they have a point; most health care organizations are businesses (even the doctors, many of whom are small businessmen and women in the same way your plumber and your hairdresser are), and they need to keep the lights on and the payroll current; if a quality initiative costs money they need to pay those bills *and* the lawyers or the settlement, they’ll decide not to pay for the quality initiative, no matter how much they’d rather try to improve their quality. Not because they don’t *want* to do the right thing, but because they simply cannot *afford* it. Change costs money (ask Barack Obama), and if you don’t have money because you’re paying lawyers (or malpractice premiums, which are essentially paid to lawyers with a percentage for insurers and, oh yeah, a few patients), you can’t do change initiatives, even if you believe (as many doctors do) that some form of change is needed.

Most doctors, having heard the lawyers tell them that they (lawyers) are a force for quality improvement, have had little in the way of counterargument. This is the beginning of a counterargument with, in my opinion, legs, and quite possibly wings. The counterargument goes like this: “Maybe so, but your force is too expensive, and not effective enough. And so, like medicine, you’re either going to need to get cheaper, or be more effective”. I’m just surprised that this study wasn’t done sooner.

More on medicine being more effective another time.