The Invisible but Influential Cultural Surround of Health Care Policy

Malpractice lawsuits against the U.K. National Health Service have been rising for some time. Many explanations for the trend have been invoked, including declines in care quality and the creation of new policies that make receiving compensation for medical injuries easier. But I think those and other wonky factors are but little blips in a much longer historical arc. I can explain the source of the change most easily by telling a story.

I was staying at my club in London and woke up to find that there was neither any electricity or warm water. I washed my face in icy water and shaved by the light of my mobile phone before stumbling down to the breakfast room. There I learnt that all the other members had endured the same unpleasant surprise. The stoves and refrigerator were not working either, meaning that the morning meal was both meager and unappetizing.

If this had been a hotel, everyone would have been angry and demanded a refund from the management. But it was our club, so none of us complained. Indeed the mood at breakfast was rather jocular. The club is us, we are the club. What were we going to do, sue ourselves?

That’s how a whole generation of British people felt about the National Health Service NHS. It wasn’t an alienating system run by outsiders. It was theirs. An elderly friend who passed away recently had his final years made shorter and more painful by an NHS doctor’s medication error. Of course my friend was not pleased, but it never occurred to him to sue the NHS. In his eyes, that would be like suing his own club.

Younger Britons see the NHS more as a hotel. It’s a government-run system of which they feel they have no stake. They are its customers, and they expect good service from this entity, to which they feel little emotional connection. If the NHS makes a medical mistake — and sometimes even if it doesn’t — some of these customers feel that it is perfectly reasonable to seek individual profit at NHS expense. As NHS staff see this change, they regard their patients with more suspicion than they had to in prior eras. The likely effect, in addition to the growing number of lawsuits, is an increase in wasteful testing and double-documentation that health care systems use to reduce the risk of malpractice claims.

The change in British culture regarding feelings towards the NHS is one of those phenomena that is very hard for health policy analysts to address and understand. No amount of studying laws, regulations and procedures would reveal that part of what made the NHS work so well for so long was a widely-shared sense of “us-ness”. The cultural surround of the NHS after the war was unique, and it is now fading. That unfortunately will make the NHS more like the US health care system, in which a cultural surround of individualism and profit-maximization makes suing one’s doctor seem a perfectly natural thing to do.

Comments

  1. Ebenezer Scrooge says

    Umm, makes sense mostly.

    I’m not a medical malpractice lawyer, but I’ve heard that US juries are very pro-doctor. It’s much easier to win a case if you can cast a hospital or insurer as the villain. This scuttlebutt is reinforced by the trusted professions polls, where physicians are pretty close to the top. (Nurses do even better.)

    Physicians still escape Keith’s cultural surround of individualism and profit maximization. But the medical system, as Keith points out, does not.

    • Keith Humphreys says

      Ebenezer,

      What you say sounds plausible. The culture does affect doctors though in ways prior to the courtroom in that patients threaten doctors with lawsuits and/or bad ratings on consumer websites/surveys, which are used in doctor’s bonus (Anna Lembke has a great piece on this in NEJM not long ago). Some docs just give in and do what the patient demands, even if it is costly and unnecessary, perhaps even dangerous.

  2. James Wimberley says

    Report here from the CPS suporting Keith´s contention. They say the trend also applies to education and other public services. Doubtless there´s a general cultural trend: less sense of ownership, also less deference to authority, and a sharper sense of democratic accountability.

    Besides, technical changes in the legal system have encouraged and democratised litigation, especially the introduction of US-style contingency fees (no win, no fee). British TV is full of advertisements by lawyers encouraging claims for workplace injury – I´ve never seen one mentioning the NHS, but perhaps I don´t pay enough attention. Legal aid (unknown in the US) is available for civil suits as well as criminal defence. The current government is trying to roll back the rising costs of legal aid, but faces strong professional resistance. Some speculate the litigation culture was brought on by the abolition of the solicitors´ cosy monopoly on property conveyancing in 1990. Like the Black Death, where the starving rat fleas jumped to second-best human hosts. (Cue for lawyer jokes.)

    • Barry says

      Thanks, James – I was going to ask Keith for that, because it’s a really big thing. A system which the majority feel that they ‘own’ should be far harder to dismantle, destroy and privatize.

    • Ebenezer Scrooge says

      James,
      Civil legal aid is not unknown in the US, although it is grotesquely underfunded. However, it has mostly conceded plaintiffs’ work to the contingency fee lawyers, especially the plaintiffs’ work lucrative enough to feed the plaintiffs’ lawyers’ families. It therefore concentrates on defendants’ work–primarily housing–and public benefits. E.g., http://www.mfy.org

  3. Joe says

    I can’t shake the feeling that there’s a connection to government austerity and the Wikileaks/Snowden Affair in here. Recently, in some very high-profile ways, the government is not doing what its citizens want. So why should we feel like we own it?

  4. alnval says

    Where to start? Surely you don’t mean to suggest that a prudent person should not pursue damages for injury? Or, that any medical delivery system is error free? Or, that the orthopedist who replaced my right knee wasn’t prudent in writing “NO” on my left knee?

    It seems to me that your argument re culture holds up best when we look at whether medical law suits have substance or are only of the nuisance variety that trigger an automatic payment from the insurance carrier in order to avoid the expense of litigation.

    It’s hard for me to believe that bringing a patient to autopsy was the sole factor in improving standards of care. Granted, oversight as to competence whether by medical committee or the threat of civil litigation has not eliminated egregious medical errors but what else would you offer?

    • Keith Humphreys says

      Surely you don’t mean to suggest that a prudent person should not pursue damages for injury?

      What I said was that one generation of Britons thought they shouldn’t, the current one feels differently, and that matters for how the system operates.

      More generally, I write an awful lot of material that is observational and I hope educational and interesting as well. I am surprised how often it generates “Are you with us or agin us?” challenges against positions I have supposedly staked out, but I guess that is the Internet culture.

      • alnval says

        Thank you for your helpful reply.. I think you’re right. The internet attenuates the communication process so that it creates its own version of the stimulus error making it almost impossible for two people to recognize that they may really be looking at the same cup.

  5. J. Michael Neal says

    Surely you don’t mean to suggest that a prudent person should not pursue damages for injury?

    Keith didn’t suggest anything either way about whether or not this is a desirable trend. I’m not sure why so many people can’t grasp that he often makes posts that are factual observations that don’t have any content about whether the facts observed are a good or a bad thing but they do. The point here is that there is a major change in how Britons see their relationship with the NHS and that this change will have significant impacts on how the NHS operates and is dealt with by the political system going forward. Something can be viewed as important even without a value judgment. (I suspect in this case, Keith thinks these developments have a mix of positive and negative motives and outcomes, but I emphasize that that is just a guess on my part.)

    For god’s sake, people PLEASE stop making me defend a State alum. No green, no white.

    • Keith Humphreys says

      For god’s sake, people PLEASE stop making me defend a State alum. No green, no white.

      I won’t rat you out with your alumni association : )

      • J. Michael Neal says

        My alumni association is the University of Minnesota and I have found that they are distressingly unaware of the evil that lives in East Lansing.

  6. H says

    Don’t know about the UK (although my very right wing father, long time hater of socialized medicine, was very impressed by the National Health when he was treated by NH for something that came up while he was doing business in London–he was sure it wasn’t socialized medicine because he liked the care he got).

    But the take on the US med-mal system is, IMHO< incorrect. Patients who go to docs to get well, not to make money.

    Med-mal cases have dropped like a falling stone in the last thirty five or so years in the US because it has become essentially impossible for lawyers to take on most cases due to legal "reform" based at least in part on med-mal insurance companies/M.D.s' efforts to avoid accountability for errors. See for example, http://www.clinicaladvisor.com/initiative-to-raise-california-malpractice-cap-underway/article/303003/

  7. Sebastian H says

    It is a rather curious example. At some point does the electricity need to get fixed to keep the club members?

  8. paul says

    First Thatcher, then the new version of Labor. The whole idea that we’re in it together has been pretty much turned into a cause for laughter during the past generation or two. (And that’s on your side of the pond. Even worse on ours.)