What Goes Around Comes Around

On a recent morning, I found myself listening to an analysis of the public defender program in America. It seems that defendants who are provided with publically funded lawyers are almost uniformly advised to submit pleas. Regardless of the strength of their cases or their apparent innocence, plea bargains have become the preferred legal defense.

As I listened, the reason became increasingly apparent. It seems that in many states, legal fees paid to public defenders are bundled into a single, one-time payment. Lawyers are provided the same amount of money whether the client is convicted or found innocent. If the lawyers choose to vigorously defend their clients and prove their innocence, they receive precisely the same amount of money that they would receive if the accused pleaded guilty on the spot. It has not taken long for the legal community to figure out that plea bargains are good for business.

As a physician, I found this analysis of more than passing interest. After all, the movement toward managed care and the DRG (diagnosis-related groups) system make lump sum payments for medical care the norm. Using arbitrary metrics like per member/per month, physicians receive the same amount of the money whether they save your life or not. The defenders of this approach explain that it was designed to limit the profit motive and curtail physician avarice. What it has succeeded in doing however, is to incentivize physicians to give up. If there is no return on investment, then there will be no investment of time, energy, skill or ability. If physicians receive no more payment, accolades, or recognition for good outcomes than for bad ones, how long can we realistically expect good outcomes to continue?

The district attorneys, who were interviewed for the piece on public defenders, pointed out, in their defense, that this has succeeded in “clearing the dockets” of backlogged court cases. However, if we were to extend that line of reasoning into the realm of medical care delivery, we would need to confront a number of distinctly unappealing ramifications.

The corporatization of medicine, expanding regulation, creation and promotion of the HMO model, and recent legislation are all the products of legal minds. While NCCN cancer therapy guidelines are increasingly employed, not as guidelines, but instead as dictates to limit the ability of well-trained, sophisticated oncologists to practice their art; a recent article in the New England Journal of Medicine on bending the healthcare curve had the “underutilization” of hospice care as a principal focus. It is interesting to observe how lawyers, faced with “lump sum” payments, are responding. Is the reported deterioration of legal representation, especially for the under privileged in America, the jurisprudence counterpart to policies already underway in the medical system? Will the same disincentives in place for physicians now come home to roost for lawyers?