1. Health ( R )evolution: (Quality = Learning) + (Ethics = Justice) Peter J. Hammer Damon J. Keith Center for Civil Rights Wayne State University Law School Detroit, Michigan

2. Health (Non) System is Broken General Indictment  Cost: Costs too much  Quality: Get too little  Access: Exclude too many Symbolic Indictment  Medical Errors  Racial Disparities

3.  Medical errors & patient safety  1 million+ injuries, 100,000 deaths (IOM)  Frame as an issue of quality  Illustration of intra-system irrationality  Lack of capacity of learning and adaptation Medical Errors as Symbol

4.  Racial Disparities & Health Inequalities  “Detroit area residents age 60-74 are dying at a rate 48% higher than their peers in the rest of the state” (Dying Before their Time)  Frame as an issue of ethics  Illustration of inter-system irrationality  Narrow biomedical understanding of health  Lack of capacity to incorporate notions of justice in advocating for health Racial Disparities as Symbol

5.  Forecasting the future: Must understand dynamics of existing processes  Factors in modeling system dysfunctionality  Balkanization of American health care  Fractured nature of Coasian firm  Insurance as finance mechanism not risk allocation mechanism (Nyman)  Dynamic moral hazard (Glied)  Absence of mechanisms for rational adaptation What Drives the Biomedical-Industrial Complex?

6. PoliticalMarket Health Care System Professional (Civil Society? ) Biomedical-Industrial Complex...

7.  Power Analysis: Architecture of Health System  Actors rationally manipulate parallel 1) political, 2) market and 3) professional processes  Development theory: limit capacity of state to expropriate private resources (how public is public?)  ERISA preemption trumped political/state power (unintended consequences)  Power of professionalism waning (doctors as distributors) Biomedical-Industrial Complex...

8.  The conundrum of asymmetric information  Asymmetry of information (uncertainty) is real (as are asymmetries in understanding changes in information)  Asymmetries tend to disempower market processes  Asymmetries tend to disempower political processes (Pauly’s non-transformation principle)  Asymmetries empower parties who can claim legitimacies in interpretation and understanding (or who benefit from confusion and uncertainty) Biomedical-Industrial Complex...

9.  “Law” can do very little  Law is constrained by Balkans of American health care  Health law tends to lag, not lead (two decades out-of- date)  Question: Does law ensure quality?  Question: Does the malpractice regime help or hinder efforts to improve patient safety?  Question: Do medical ethics lead to better social decision making? What Can Health Law do?

10.  Health law lags and does not lead  Law tracks the superstructure of the biomedical- industrial complex  Much of law reflects the shadow of a dysfunctional system (fraud and abuse, self-referral)  Change will come first in evolving organizational structures What Changes Health Law?

11.  Health Care Quality = Learning  Visualization: What would patient safety look like in a system designed to foster intra-system rationality?  Insight: Importance of organizational learning and adaptation as ingredients to quality  What are the implications for health law?  What pictures would your draw?  What enabling environment is necessary? Re-Imagining Health Quality

12.  Health Care Ethics = Justice  Visualization Exercise: What would racial inequalities look like in a system designed to foster inter-system rationality?  Insight: Importance of new ethics focusing on justice  What are implications for health law?  What pictures would you draw?  What enabling environment is necessary? Re-Imagining Health Ethics

13.  Claim: Need greater sensitivity to developing structures the facilitate learning, adaptation and evolution  “Complex Adaptive Systems” as a framework  Health Systems Development  A LLIANCE FOR H EALTH P OL ’ Y & S YSTEMS R ESEARCH, S YSTEMS T HINKING FOR H EALTH S YSTEMS S TRENGTHENING (Don de Savigny & Taghreed Adam eds., 2009)  Structural Racism: Kirwan Institute  S TEPHEN M ENENDIAN & C AITLIN W ATT, K IRWAN I NST., S YSTEMS P RIMER (2008) The Path to the Future

14.  Claim: Need greater intra-system rationality  Focus on quality as a learning problem  Positive signs: Quality components of ACA  Comparative effectiveness research  Center for Quality Improvement & Patient Safety  Sensitivity to cultural/organizational factors  Office of Communication and Knowledge Transfer  Blending outcomes and payment  Information systems in Stimulus Package  Caveat: Building effective organizational structures is easier in theory than in practice The Path for Quality

15.  Claim: Need greater inter-system rationality  Focus on ethics as a problem of social justice (inclusion)  Incorporate social & economics determinants  Greater role for public health programming  Addressing chronic illnesses from a community perspective (real medical homes)  Expand “scope of practice” laws  International “Community System Strengthening” initiatives as a model  Must solve these problems for global cost control The Path for Ethics

16.  General Equilibrium Framework  All prices in all markets in equilibrium  Ultimate agenda  Merge agendas of facilitating intra-system and inter- system rationality  Health ( L )evolution: (Quality = Learning) + (Ethics = Justice) Ultimate Imaginative Undertaking