Faculty Scholarship

Document Type


Publication Date

Spring 2013


.. [W]hile the ACA [Affordable Care Act] has at least some provisions addressing the need to make changes in the medical malpractice and licensure systems to encourage the use of evidence-based standards of care, the ACA completely ignores the hospital peer review system. This article makes specific suggestions for how to revise all three major systems [the tort, licensure, and hospital peer review] so that they can work in tandem with federal law to encourage physicians to adopt [an] evidence-based model of medical practice in order to improve healthcare quality, cost, and access.

This article starts by explaining the difference between customary care treatment choices and evidence-based treatment choices. Next, the article explains how customary care can be poor quality care, how the customary treatment choice of a particular region can be more related to geography than to quality, and how customary treatment can be costly treatment. This article then outlines how federally provided healthcare pursuant to the ACA, as well as Medicaid and the VA Hospital System, have adopted evidence-based treatment choices that show great promise for enhancing quality of care while decreasing the cost of care. The article goes on to explain how the three U.S. systems for improving quality of care—the state medical malpractice and licensure systems, and the private hospital peer review hearing system—are acting instrumentally to thwart national efforts to move to modern, evidence-based healthcare. This article accomplishes this by citing empirical research and providing a working example of how a physician risks medical malpractice liability, or the loss of the ability to practice medicine entirely through hospital peer review, by choosing the evidence-based treatment choice rather than adhering to the customary treatment choice.

Finally, this article proposes specific solutions to this disconnect between federally provided healthcare pursuant to the ACA, Medicaid, and the VA Health System, and the other three systems for improving health care quality, cost, and access. These solutions involve both top-down and bottom-up strategies. [excerpt]