OP-ED

What if We Regulated Legal Services Like Health Care?

Well, the future of American health care is now controlled by lawyers. That may not be news – doctors, drug makers, and medical-device makers have long complained about the cost of lawsuits. But this different: The future of PPACA is in the hands of the Supreme Court. Hundreds of lawyers billed thousands of hours analyzing and preparing briefs for the case. And that’s after countless hours spent by Congressional staff lawyers putting the bill together in 2009 and 2010. The result? A “law” so confusing that even the legislators – themselves mostly lawyers – could not bother to even try to read it.

It makes one think: If the lawyers are designing the health-care system, shouldn’t they be forced to operate under regulations similar to those they’re imposing? How, for example, do lawyers get paid? Today, they negotiate fees with clients. That hardly seems fair. In health care, doctors don’t negotiate fees with patients, they get paid according to an opaque schedule determined by health plans. Lawyers should do the same. The solution is “legal insurance”. After all, who amongst us knows when we’ll need a lawyer? It is often an unpredictable expense, and yet the “market” seems to have failed to provide such insurance. Government must intervene.

And what about seniors? Can they all afford the legal services they require? Certainly not. So, we need a compulsory, single-payer, legal care program for seniors. The Department of Justice will oversee all claims. How will fees be determined? That’s easy. Let’s define a standard “unit” of legal care. For the sake of argument, let’s say it is preparing a will for a married couple, each 60 years of age, with a combined household income of $100,000 and wealth of $200,000. Suppose this will takes ten hours to prepare at a cost of one thousand dollars. Thus a standard “unit” of legal care is $100 per hour. Cases that are more complex than this will receive higher hourly reimbursements. A divorce, for example, could be “worth” 1.4 times the standard charge per hour. Fixing a dispute over whether your neighbor’s fence is on your property could be “worth” 0.8 times the standard charge. Of course, there would also be geographic adjustments so that lawyers who practiced in high-cost areas earned more. You might think that the Department of Justice could not possibly manage the overwhelming complexity of this system.

You’d be right, that’s why we would outsource the project to the American Bar Association, which will maintain the codes and earn licensing revenue from vendors who sell manuals, software, training, et cetera to lawyers across the country who need to master the codes in order to submit claims. This revenue will comprise almost all of the ABA’s business in the years to come. Needless to say, any reform to the system will have to be blessed with the ABA’s imprimatur, which the government and media will promote as representing the will of all lawyers.

And what about the quality of legal advice? Look again at the ongoing Supreme Court ObamaCare case. Anyone could submit an amicus brief without any external vetting. Today, the only person a lawyer has to satisfy is her client. Any lawyer who wants to try out a new legal theory is free to do so. This is very confusing, messy, and adds needlessly to legal costs. So, the federal government should establish a 15- person “independent legal advisory board” comprised of the best scholars from the nation’s top law schools. All legal arguments will have to be approved by this board before being used in court, arbitration, or negotiation, to ensure that clients (and “the system”) get value for money.

Well, lawyers, what do you say? Any takers?

John R. Graham is Director of Health Care Studies at the Pacific Research Institute, & Senior Fellow at the National Center for Policy Analysis.

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ryan adamscomo ganhar dinheiroDr RIgnoramusHMT Recent comment authors
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ryan adams
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como ganhar dinheiro
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Dr R
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Dr R

Well written and articulated. I agree and have wanted to get this across so many times to people. Unfortunately, most people,including the lawyers who are politicians, are not educated about the complexity of the formulas that are used by insurance and Medicare for us to get paid for the medical services we provide. Unless they understand RBRVS, CLIA. etc. they can’t fully understand what we are talking about. If lawyers and other business professionals of any type were under the same system in order to be paid, they wouldnt stand for it. We as physicians do not take an active… Read more »

Dr R
Guest
Dr R

Well written and articulated. I agree and have wanted to get this across so many times to people. Unfortunately, most people,including the lawyers who are politicians, are not educated about the complexity of the formulas that are used by insurance and Medicare for us to get paid for the medical services we provide. Unless they understand RBRVS, CLIA. etc. they can’t fully understand what we are talking about. If lawyers and other business professionals of any type were under the same system in order to be paid, they wouldnt stand for it. We as physicians do not take an active… Read more »

Ignoramus
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Ignoramus

Doesn’t a system similar to this, at least for defense, already exist in the case of public defenders? Of course there are a multitude of quality and taxation issues involved, but I think your idea about ‘socialized lawyers’ has to take into account that there is this ‘public defender’ option, where as the only health care based equivalent is ending up in the emergency room where they’re forced to help you by law.

HMT
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HMT

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Texan99
Guest

Actually, a lot of the legal profession does work like that, though admittedly only the most dysfunctional part. Any time legal fees are paid by a third party you’ll see exactly this kind of nonsense pop up: in bankruptcy court, for instance, or in fee-shifting from successful plaintiffs to the defendants. Courts end up having to put caps on hourly rates and appoint fee examiners to sift through huge legal bills in order to quarrel about whether a legal brief should have required 5 lawyers to spend 100 hours each. A huge amount of the litigation in a large corporate… Read more »

Rangerat
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Rangerat

Way too complicated.

The “problem,” according to Obama, boiled down to its simplist, is that people are making too much money.

Solution: maximum wage law.

Everyone happy, working toward the common good,

UTOPIA!

Peter1
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Peter1

As with any guild, lawyers keep the simple stuff inaccessible. Most simple legal work is just filling the correct paperwork, but getting access to the forms and the basic knowledge of what to use is legally blocked by the legal guild. Here in NC even small claims is controlled by lawyers with county clerks legally prohibited from giving any info to plaintiffs. And the fees aren’t cheap either, used as a tax mechanism and to keep the numbers down. Then if you win, the law protects the debtor in a frustrating mechanism of legal hurdles and protected assets. Only way… Read more »

John Ballard
Guest

Interesting query, comparing physicians with lawyers. There was a time when individuals needing legal help contacted a lawyer and those who got hurt or sick contacted a doctor. The relationship was a straightforward contract between a client and a professional. But the moment we need an assembly of doctors or lawyers, the question arises: who is the client? Why, the person needing help, we say. But wait. As soon as professional #1 agreed (or suggested — we call that “referral”) to divide the compensation with someone else the relationship is no longer that simple. Professional #2 and beyond becomes, if… Read more »

Paolo
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Paolo

Well, in the legal profession there already is a “safety net” where everyone has a constitutional right to legal counsel in criminal proceedings, even if they can’t afford it. There is no such equivalent in health care field.

BobbyG
Guest

We COULD decide to change that.

John R. Graham
Guest

Dr. Motew, I’m no fan of the med-mal status quo but I get nervous when faced with proposals for the government to collude with any interest group to fix damages for harm. It appears to violate a basic priniple of tort law. But I’m very surprised to see a physician propose that the government and the lawyers work this out together. I would have expected a physician would want the government and the physicians to work it out, with the lawyers at a safe distance away from the negotiation. Shirley Svorny of CSU Northridge, writing for The Cato Institute, has… Read more »

SJ Motew, MD
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SJ Motew, MD

I have proposed previously that at least for medical malpractice, a regulated payment system would make sense and represent a level playing ground as the physician side of the equation does operate within a regulated payment system. For example, a standard fee is designated by the Government+ABA representing true costs/work for the attorney in any malpractice claim regardless of outcome or total payout. This would be tied to CPI but also be capped based on legislative directive and cost containment (ala SGR) in a similar fashion as physician payment. Any guess as to what would happen to number of malpractice… Read more »

Matthew Holt
Guest

This sounds much better to me than our current legal system

Peter1
Guest
Peter1

“The result? A “law” so confusing that even the legislators – themselves mostly lawyers – could not bother to even try to read it.” Don’t kid yourself, legislators don’t read much of ANY legislation as they’re too busy dialing for dollars. Another reason lobbyists write the legislation in the first place. Certainly lawyers have an opaque and guild created system of fees (double billing aside), but when was the last time you had to be rushed to a lawyer in an ambulance and were unable to negotiate anything? If doctors want to create legislation protecting them then they’ll need to… Read more »