Law Review: A prescription on health-care reform

In terms of Democratic street "cred," Mitch Goldman has it in spades.

Goldman, a health-care finance lawyer with Duane Morris L.L.P., was a research analyst and speechwriter on Capitol Hill for Walter Mondale before heading north to get a Wharton M.B.A.

At age 18 he traveled with Bobby Kennedy during the 1968 Democratic presidential race, a heady assignment that ended tragically with Kennedy's assassination.

He raised money for Joe Biden's 2007 presidential bid, and he has supported other Democrats on the national political stage.

But for all of Goldman's ties to the Democratic establishment, he has his doubts that President Obama's health-care plan would work were it to become law.

Part of this has to do with the complexity of restructuring the nation's sprawling health-care system. The task simply could not be accomplished in the Obama administration's telescoped time frame, he says.

But part is that few lawmakers have the stomach to take the enormous political risks involved in revamping a health-care market that accounts, by some estimates, for 16 percent of the nation's GDP.

Given the election results last week in Massachusetts, where Republican upset winner Scott Brown campaigned in part on the promise to vote against the Obama plan, health-care restructuring has likely hit a formidable roadblock.

Goldman has ideas for how to move the debate forward, though.

As a starting point, he suggests the appointment of a nonpartisan panel, along the lines of the military base-closing commission established by Congress to take that volatile issue out of the hands of politicians and inoculate them from the inevitable fallout.

"Health care has become the true third rail of politics," Goldman said. "There is too much polarization. It is as emotional for most people as religion."

Goldman, who has a significant resume in health law and policy, is no dilettante. He teaches health-care finance at Drexel University Law School, has handled the legal work for physicians in rate negotiations with their health insurers, and, in the sale of a hospital, has been a hospital general counsel. He is also a founder of a medical-malpractice insurance company, an affiliate of the Duane Morris law firm.

He is sympathetic to the Obama administration's goal of insuring 30 million Americans who lack health insurance.

"I fundamentally believe in what they are trying to do," he says.

But he adds that the administration's political calculation of what is doable in the current climate resulted in a plan that leaves out important fixes. It was a major omission not to include policies to increase the number of primary-care doctors, he says. Without them, the onrush of new patients likely would be overwhelming and result in doctor shortages.

"When you put 30 million new people in the system and don't increase the number of doctors, you have a problem," he said. "What is painfully clear is that access will be a problem."

Apart from further opening the health-coverage market to individuals and small employers through insurance exchanges, the bill would not do much to restructure the economics of the health-insurance industry, he said.

He proposes government-funded pilot programs, much as President Richard M. Nixon experimented with precursors to health-maintenance organizations, which took off in the 1980s as cost-cutting vehicles.

"There is not enough imagination in this whole industry," Goldman says of health insurers. "The only place with imagination is on the pharmaceutical side, the technology side."

Goldman is convinced that public education can change individual behavior, much as the antismoking campaigns persuaded millions to quit. This is critical because America's aging population will cause health costs to soar, quite apart from any new and costly technology or treatments.

Yet the Obama administration's plan would do nothing of consequence along these lines, Goldman says.

Goldman even takes a poke at a Democratic sacred cow, the plaintiffs' bar. He says physicians should be protected from lawsuits if they employ "best practices" in treating patients.

The cost to the current system of lawsuits does not come so much from high jury awards in favor of plaintiffs, he says. Of far greater impact are unnecessary tests and other defensive maneuvers that physicians engage in so they can defend themselves in case they do get sued.

What he urges most of all, however, is an entrepreneurial mind-set in which policymakers are willing to take risks to make big changes.

He says this is what Duane Morris did during Pennsylvania's medical-malpractice crisis several years ago. The firm established an affiliated medical-malpractice insurance company in which doctors were given ownership interests and encouraged to settle malpractice claims early.

Duane Morris made money and the doctors saved on their insurance premiums, Goldman says.

Maybe something similar can happen with national health care.