Warranties for healthcare?

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American consumers are used to warranties. If you buy a TV set and it stops working within a specified time, you can ask for a replacement or to have it fixed. The same goes for washing machines and even cars.

What about healthcare?

The closest we have to a warranty—or even an implied warranty—is the package insert (PI), but while there have been lots of lawsuits and regulatory actions claiming that the labeling gave inadequate warnings about risks and side effects, I don't believe that anyone has ever complained that the labeling failed to list an indication for which the product did work. (Though that may have made the marketing vice president unhappy.)  

Anyway, how do you prove —even if you claim the PI as an implied warranty—that the product did not work as claimed?

If you were to break a leg and have it set and it doesn't heal properly, at least an X-ray will provide some objective evidence. But what if you're being treated for an allergy and your nose keeps running? The PI says that the product will control the symptoms, but is that a warranty?

The authors  of a recent article in Health Affairs seem to think so, and they have a suggestion as to how such warranties can be enforced: If the treatment doesn't work, you don't have to pay.

The authors believe that such a system, by transferring the risk to the providers, would improve patient care.
This is how they phrase it in their abstract: “How healthcare providers get paid has implications for the deliver of care and cost control; the topic is particularly important during an economic downturn with persistent growth in health spending. Adding ‘warranties' to care is an innovation that transfers risk to providers, because payment includes allowances for defects.”

They conclude that “...warranties could motivate providers to improve quality,” and improve their own bottom lines.

A neat trick.

Do they prove their point? Not to this skeptic's way of thinking.

If the treatment doesn't work it might be the patient's fault—a point the authors also acknowledge. The key, they say, is to define which failures are the provider's fault and which are not.

Skipping doses, taking too much of the drug or too little, are clearly the patient's fault. But when they list the failures for which the provider is to blame, things get a little fuzzy. They list “errors of omission and commission,” and then add this wastebasket category: “other actions that harm patients or fail to optimize outcomes.”

Can you imagine a jury in a malpractice case struggling to decide which was the true cause of the complication?

Suppose the patient swears that the doctor never explained the importance of taking the medication with meals as the labeling directs. The doctor cites his notes as evidence to the contrary.

But isn't that exactly what happens now in malpractice cases? But patients are notoriously reluctant to sue, unless the damage was egregious. Warranties, however, have the potential of opening the floodgates to litigation.
We've got enough problems in healthcare marketing without adding warranties into the mix.

Warren Ross is editor at large of MM&M
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