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Overtreated, Or Overregulated?Overtreated: Why Too Much Medicine Is Making Us Sicker and Poorer, 2d ed.by Shannon Brownlee (New York: Bloomsbury, 2008), 320 pp., $16
Shannon Brownlee is both journalist and crusader. As a journalist, she rightly makes no claim to having done original research. Professionals who are familiar with the field therefore will learn little or nothing new from her well-crafted account of the current state of research on health care outcomes. But they will surely appreciate her unerring ability to draw her readers into her elegant narrative with a well-placed anecdote or interview. The artful juxtaposition of the personal touch with the statistical indictment of the U.S. health care system may well sway lay readers who might otherwise continue to think, perhaps erroneously, that American medical care is, almost without question, the world’s best. As a crusader, Brownlee has a clear vision of what wrongs need to be righted. The two cardinal sins under her world view are captured in her title. The first of these sins is that overtreatment kills and maims patients while subjecting them to unnecessary pain. The second is that the waste of scarce resources can impoverish overtreated individuals, their families, and the health system at large. Brownlee can scarcely contain her amazement at how the United States unerringly spends more on health care than most other nations to achieve worse outcomes. In stressing these points, Brownlee is, thank heavens, no therapeutic nihilist. Indeed, she constantly reminds her readers of the solid achievements of modern medicine that have led to longer lives and less pain. But in the larger context of Overtreated, these disclaimers don’t mask her passion for setting out the impressive if familiar array of cases of high-powered treatments that have turned bad. Early on in her book, she offers a brief account of the pitfalls of using bone marrow transplants as a last-ditch treatment for breast cancer. These avowedly experimental procedures were never backed by solid proof. Nonetheless, they were performed thousands of times on well-connected patients who take advantage of the system, only to torture themselves in vain. It’s no surprise, therefore, that two of her heroes are Jack Wennberg and Elliott Fisher for their pioneering work showing the lack of correlation between high health care spending and favorable outcomes. Brownlee uses her indictment to hammer home several key points. One is simply to warn her audience how to guard in their own lives against the facile assumption that more treatment is better treatment. The second is her vision of health care transformation: we can cut back on expensive care; cut back on risky care; and use the savings to fund a system of universal health care that includes the millions who are today sadly undertreated. Specialists will decline in influence, and the shortage of primary care physicians will be intelligently addressed. Her new approach will take its cue from the successful operation of private health care organizations such as Kaiser Permanente and Mayo Clinic and, above all, the Veterans Health Administration, now that it has been streamlined and rationalized by yet another of her heroes, Kenneth Kizer, into the envy of the world. Herein lies the rub. Brownlee’s book displays an odd streak of optimism after her relentless indictment. And that is precisely where it falls down. The results of Wennberg and company have been known for thirty years or more, and yet as a nation we find it impossible to break down the institutional forces that prop up the status quo. There are no medical programs that should escape our collective frustration and wrath. Medicare is hideously overexpensive, and yet we look in vain to find any elixir that can slake its endless appetite. No matter what scheme of regulatory oversight is put into place, ingenious patients backed by determined doctors and hospitals find a way to give gobs of end-of-life care. It is, of course, feasible to identify the futile and wasted spending after the fact. Before the fact is a different story, for in at least some fraction of cases, heroic methods produce some modest results, which inspires others to fight on—often at the expense of their fellow citizens. So what is to be done? I won’t speak at length at the endemic problems of fraud and incompetence in Medicaid, or the rising tide of institutions that won’t take Medicaid patients. And few U.S. institutions are less popular than health maintenance organizations (HMOs), for which Brownlee has scarcely a nice word to say—even though their main function is to provide both the information and the veto power that prevents the overconsumption and maldistribution of medical care. Alas, I have little reason to think that Brownlee’s book, or any other passionate tome, can break the cycle of forces that contributes to the massive distortions in the U.S. health care system. It is not just that entrenched interests are extremely adroit at working the levers of power for their own advantage. It is that as a nation, we have no clear collective sense of how to untangle the current mess. Brownlee has no kind word for markets, either, and here she misfires. Right now the extensive regulation of the private sector has a very high implicit cost that Brownlee nowhere acknowledges. We can’t use private mechanisms to correct medical error. Go back to that breast cancer bone marrow transplant story and ask this simple question: Suppose, just suppose, that early on a private insurance company sought to deny reimbursement for that transplant, pleading that its policy doesn’t cover experimental treatments. Don’t bet that it would have won. The likely outcome is that an indignant judge would have struck down the exclusion as unconscionable, oppressive, and void against public policy. That singular inability to enforce agreements undercuts the private monitoring of wasteful behavior. The same story could be told about the inability to contract out of liability for medical malpractice, or to limit the liability of pharmaceutical companies in drug and vaccine cases. We are indeed overtreated. But at no point does Brownlee seriously address the sources of overregulation that drive this result.
Richard Epstein (repstein{at}uchicago.edu) is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago; the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution; and a visiting professor of law at New York University. He is the author of Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press, 2006).
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