No one much reads, or even knows about, Ring Lardner anymore. Lardner was one of the most popular American humorists of the early 20th Century, but if he is remembered at all today, it is usually because his son, Ring Jr., wrote the screenplay for M*A*S*H*.
Lardner did leave behind some memorable turns of phrase, though – quotes still remembered in some corners even though Lardner himself is forgotten. The favorite one in my household is the one that forms the title of this column. In one of Lardner’s books, this exchange occurs between the young narrator and his father, who are trying to find their way down the Grand Concourse in the Bronx: “‘Are you lost, Daddy?’ I asked tenderly. ‘Shut up,’ he explained.”
Well and good, you may say, but what does that have to do with health law or health lawyers? Unfortunately, it seems to me that those four words are a fair paraphrase of a lot of conversations that go on in and around the healthcare industry these days. In countless discussions and negotiations, we and our clients retreat to dogmatic positions based on the kinds of clients we have or the industry sectors in which we work or the political positions we espouse, and we lose the ability to hear the ideas and concerns and hopes and fears that are across the table from us.
Hospitals and physicians should be joining together for greater coordination of care, but too often get bogged down in battles over turf and control. Payors and providers should be focusing on creating a reimbursement system that rewards cost-effective preventive care and rewards innovation, but are too often blocked by the fear that any change in the system will give one side an unfair advantage in the fight over healthcare dollars. Too often, ideas that offer real opportunities for improvements in patient care and cost control run aground on the shoals of “That’s not the way we do it.” Shut up, he explained.
Countless dollars are diverted from patient care to pay penalties for alleged “frauds” that often are – let’s be honest –nothing more than technical violations of ridiculously complicated regulations. Countless more dollars are diverted from patient care to pay lawyers to document arrangements that often are – let’s be honest – nothing more than efforts to avoid the intended effect of those regulations. Too often, cases are brought and defended not on the basis of what best protects the integrity of the healthcare system, but on who can score the most points in the battle of the technicalities. Shut up, he explained.
In this country, we are engaged in an ongoing national debate on how best to create a system that lowers the barriers that prevent people from accessing our healthcare resources and produces better clinical outcomes. And yet that debate is obscured by diatribes, slogans and fabrications (“dhimmitude”, anyone?), as each side strives to depict the other as venal, foolish or even un-American. Too often, our views on healthcare reform are shaped not by an honest assessment of its strengths and weaknesses, but by our political support of or opposition to the current Administration. Shut up, he explained.
As lawyers, I believe we have a role to play in changing these sorts of attitudes. What are we trained to do as lawyers? We are trained to objectively assess facts. We are trained to see both sides of the story. We are trained to figure out how parties – even adversaries – can find common ground and reach a result that leaves them better off than they were. We are trained to listen and analyze and clarify and explain, and to help our clients separate what is important from what is unimportant.
Call me naïve, but maybe we can put that to use in changing our healthcare system for the better. If we apply our skills – especially those skills of listening and explaining – maybe we can help our clients get past the lines in the sand that people like to draw. Maybe we can help them see that “We’ve always done it this way” and “That’s not how we do things” aren’t answers, but merely obstacles that keep the different constituencies that make up our healthcare industry from working together to improve the system. Maybe we can even help our clients – whether those clients are private-sector players or government regulators, providers or payors, physicians or institutions – learn to listen better and reason together.
Maybe a good first step in doing that is to find a place where lawyers from all sectors of the industry can listen to and learn from each other. And what better place to do that than the Health Law Section’s Conference on Emerging Issues in Healthcare Law, coming up just next month? Because EMI brings together the best the Section has to offer – government lawyers, private practitioners, in-house counsel; lawyers who represent payors and physicians and hospitals and device companies; relators’ counsel and defense counsel; seasoned old pros and energetic young minds – and gives them a chance to talk and listen and enjoy some of the best educational programs and social events the healthcare bar has to offer. If you haven’t made your reservation for EMI, stop reading this and do it now. You’ll learn things, you’ll have fun, you’ll see old friends and make new ones. And, with any luck, you’ll come away with the ideas that help you change the healthcare system for the better, as you help your clients get past the barriers that keep them – and sometimes us as well – from hearing each other.
Because “Shut up!” is not an explanation we can settle for anymore.
See you in Arizona!
*Mr. Horton is the Vice Chair of the ABA Health Law Section's Governing Council.