According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This IOM report is proving to be very conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.”

One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of empirical studies suggests that this customary care model of medical practice has a profoundly negative impact on the quality and cost of healthcare. The customary care, or eminence-based, model of medical practice is based on physician preference and not on objective, scientific evidence.

The quality and cost problems with the customary care model have led to a new, national push to move the United States to a modern, evidence-based model of medical practice through major changes in the government provided healthcare, including the VA Hospital System, Medicare and numerous, multi-billion dollar new programs created by the Patient Protection and Affordable Care Act of 2010 (ACA), also known as Obama Care. The evidence-based model of medical practice is grounded in empirical data generated by clinical outcomes and effectiveness research which suggests the optimum treatment for a rapidly growing number of clinical conditions. This use of empirical data generated through scientific methodology to make medical decisions shows great promise for enhancing quality of care while decreasing the cost of care.

This Article explains how the three major, national systems for improving healthcare quality that have long-existed in the United States -- the state medical malpractice system, the state licensure system and the private hospital peer review system-- are undermining the federal efforts to encourage the adoption of evidence-based medical practice by adhering to the use of customary care as the exclusive proxy for quality of care. Thus, these systems are acting instrumentally to encourage the perpetuation of custom-based practices. This Article makes specific suggestions of how to harmonize these systems with ACA and other federal programs, allowing them all to work in tandem to encourage physicians to adopt the evidence-based model of medical practice in order to improve healthcare quality, cost and access.