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The LFEA – the Lawyers’ Full Employment Agency, that is – is at work again on Capitol Hill. This is outstandingly demonstrated in the Senate’s recent action on the Patients’ Bill of Rights. If the Senate has its way, doctors will still issue prognoses, but they will need lawyers by their side to "help" them make critical trade-off decisions involving the health of patients. The senators seem to be focused on helping patients sue their health plans rather than on enabling patients to choose them.

Patients already have the right to sue their doctors, and this right to sue is one of the driving forces behind rising health care costs. Philip K. Howard observes in a recent article in The Washington Post, "Doctors today commonly regard their patients as potential plaintiffs. ... What we are witnessing in the halls of Congress is not a solution to health care in America but the death throes of the medical profession." Do such comments and possible legislative action suggest that market forces in health care have failed the patients? If so, should we be turning to the legal system to attack the symptoms, or should we look deeper into the problems to find the causes behind the symptoms?

Concern for those in need of health care is virtually universal. God commands us to care for the sick and needy; Jesus performed a number of miracles that cured the ailments of those afflicted. Clearly, striving to meet the needs of the sick is a fulfillment of God’s order to love our neighbors.

Physicians use their God-given talents to save lives and treat sicknesses. But though health care can be a calling from God, someone must still pay for physicians’ services. They, like the rest of us, have to put food on the table and want to clothe, house, and educate their children. We use systems of health insurance so that the heavy health care costs that strike some of us can be shared by all of us. Most of this health insurance is chosen and paid for by employers, not by the patients themselves. These insurers are now the ones who pay the medical bills and dominate the health care marketplace.

It is important to note that the market lacks the telos to tell us, from a moral standpoint, what we ought to do. It simply instructs us as to the most efficient way of utilizing resources. Keeping this in mind, we can pose this question: Why does it appear that markets are not working to protect the interests of patients?

One answer lies in the unintended consequences of governmental intervention. Today’s problems were yesterday’s solutions. Giving tax breaks to corporations to buy health care insurance dates back to World War II. Free health care for employees provided by their employers was a way for corporations to attract and retain workers when wartime wage ceilings prevented wage increases. That was over 50 years ago.

Since then, health care costs have skyrocketed. Our health care system is presently far more complex and costly than it was 50 years ago. One of the most important reasons for the rising cost is the need to pay for the incredible advances that have been made, and are still being made, in treating and curing our many ailments. Pharmaceuticals also do more – and they cost more. Disposable garments, gloves, syringes, drug packaging, etc., prevent the spreading of disease, but they cost more than reusables. Education of our doctors is better and takes longer, but it, too, costs more. Our present health care system requires far more administrative paperwork, which, in turn, requires workers and money. Finally, malpractice insurance costs have increased sharply. Do we want to increase these costs even more by increasing opportunities to sue, which, in turn, will increase health insurance costs?

Most employers now require employees to share some of their health care costs, and insurance companies offer corporate buyers varying coverages and deductibles – but it is still the employer, not the employee, that, for the most part, selects the health insurance the employee will receive. Health care providers have responded to the demands of their corporate customers and have worked hard to cut costs. Patients, in turn, have become a health care cost instead of a beneficiary in the eyes of the marketplace. This distortion in the marketplace stems from a tax system that places choice of a health care system in the hands of employers rather than employees. Without an option to select and change their health care providers, patients have little alternative but to go to court when their interests are not well served. Enlargement of the patients’ right to sue will further entrench a flawed system.

Congress has more important things to do than to help patients hire more lawyers. If Congress wants to help, it should call for health care providers to measure the quality and results of their care, as well as their costs; with disclosure of the results of providers’ care, patients could make intelligent choices. Perhaps even more important, Congress can investigate why over 40 million of our fellow citizens have no health care insurance at all!

Appropriate action for Congress to take in addressing such problems is to restore the people’s right to freedom of exchange in the health care market. The author Rose Wilder Lane wrote, "Again and again, in sermons and parables and acts, Christ said that all men are free." In that vein, Congress should focus on revising our tax laws to grant patients the freedom to choose their own health care providers. Give patients the right to choose and they will have less need to exercise their right to sue. Markets will work for patients, instead of against them, and the health care providers that survive and thrive will be those that respond best to patients’ desires for quality care as well as cost-effective care. Problems will be worked out in the marketplace rather than in the courthouse. The quality of health care will again become important in the marketplace when patients get to choose.

Gordon Johnson, previously the CEO of LogEtronics, contributes, earned a B.A. from Stanford University and an M.B.A from Harvard. His areas of expertise include Business & Society, International Trade, and Technology & Regulation.