In taking steps to reward high-quality health care and penalize waste, the Affordable Care Act has opened a new door for technological entrepreneurship in medicine. A new monitor that automatically reminds doctors to wash their hands before entering patients’ hospital rooms, for example, could lower the abysmal rate of hospital-acquired infections in the United States.
An older technology already installed in most hospitals could do even more to ensure good health care. Doctors could use video cameras to record all their procedures. As Martin Makary, a surgeon at the Johns Hopkins School of Medicine and Bloomberg School of Public Health, recently argued in the Journal of the American Medical Association, this would improve doctors’ performance and enable them to be fully transparent with patients about their work.
Unfortunately, there is a legal barrier to filming medicine. Simply put, videos would provide a whole new level of evidence in malpractice lawsuits, and a rich hunting ground for trial lawyers on the lookout for big game.
The health care law could have removed this barrier by including provisions to reform medical malpractice laws. That omission has been a missed opportunity.
Consider how useful it would be to have a video record of your surgery. You could share it with future doctors who might later treat you. If there were complications and you wanted a second opinion before going under the knife again, your video would be invaluable to that second doctor. Even the surgeon on film would welcome a video review if he or she needed to operate again years later.
The notion that video recording would improve doctors’ performance is borne out by a study of colonoscopies, as Makary has pointed out. These procedures were found to be more thorough when gastroenterologists were told that colleagues would review a video of their work.
Cameras positioned over hand-washing stations could work as well as newfangled bracelet monitors. When one Long Island hospital tried this, its compliance rate shot up to almost 82 percent from 6.5 percent.
Unfortunately, when it comes to recording surgery and other procedures, America’s litigiousness makes the suggestion woefully unrealistic. Hospitals and providers couldn’t expect protection from lawsuits employing this new evidence, as Makary suggests, simply by declaring “a priori” that videos are made only for “quality improvement purposes.”
Legal experts whom I have interviewed confirmed this. Lee J. Johnson, a lawyer in Mount Kisco, N.Y., warns doctors not to videotape even their informed-consent discussions prior to procedures, because an adversarial lawyer could exploit any omission. If there were a video record of the procedure itself, she told me, a plaintiff’s lawyer would request, and get, a copy.
Malpractice laws vary by state, and while some allow for video recording, it must be part of a “formal review process,” according to Atlanta-based health care lawyer Elizabeth Schoen. To make videotaping routine in hospitals and clinics would require legal rules to keep them out of court. That would also mean keeping them out of the hands of patients, however, defeating their best purpose.
The Affordable Care Act could have prevented the problem, had it included tort reform of the kind that President Barack Obama sponsored in 2005, when he was a senator. Early sketches of the health care law would have mandated, for example, mediation rather than litigation in cases where alleged medical mistakes were immediately disclosed. Technically savvy health courts and safe-harbor provisions for providers who follow best practices could have made doctors comfortable with video recording.
These measures were ultimately discarded out of concern that they would put at risk the vital support of Democratic lawmakers who are closely aligned with trial lawyers. As a result, medical errors brought to trial will continue to be interpreted by juries who will always find a videotape more powerful than an explanation.
It isn’t too late to provide legal protection for medical video recording. The Affordable Care Act’s success rests on providers practicing in a smarter and leaner way, and on patients accepting this new approach. Turning down the volume on the legal jeopardy that providers face every day could make innovations such as video medicine realistic. The president and Democrats in Congress could please Republicans who have long supported medical-tort reform and simultaneously shore up the Affordable Care Act’s prospects by introducing a few common-sense protections for doctors who smile for the camera. It would take some political courage to face down the trial-lawyer lobby, but consider the payoff: cheaper, higher-quality medical care.