Philip K. Howard
2007-05-11 07:00:00.0
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WASHINGTON -

Skyrocketing health care costs are a looming national tragedy, but they cannot be contained without restoring reliability to American justice.

America spends $1.9 trillion annually on health care — almost twice what other Western nations spend — but American care, on average, is no better than in countries that spend half as much.

There are a number of forces contributing to this higher cost, including government mandates and lack of market discipline, but one of the largest drivers of excess costs is American justice — or more accurately distrust of American justice.

Fear of erratic jury decisions in medical malpractice cases has spawned a culture of fear, causing inefficiencies that infect every level of medicine. Any sick person who gets sicker can drag a doctor through years of litigation. A jury can render a verdict that bears no relation to accepted medical standards or, indeed, the results of prior cases.

It is not that most juries are unwise: Overall, according to a recent Harvard study, the error rate in this system is about 25 percent. But playing Russian roulette with one bullet in four chambers is not a source of comfort to most doctors. Meanwhile, payment to patients who deserve it may take years, with the attorney receiving up to 40 percent of the award.

The direct costs of the malpractice system — about $28 billion a year — are only the tip of the iceberg. Defensive medicine, the practice of ordering procedures and tests that are not clinically indicated, is everywhere — practiced by more than 90 percent of physicians, according to a recent study in Pennsylvania. It’s hard to calculate the total cost of defensive medicine, but estimates start at the tens of billions and go up from there.

Restoring trust in American justice can’t be accomplished by tweaking this system. A functioning system of justice must aspire to deliberate choices, binding from one case to the next. Reliability is crucial. Providers must know what’s expected of them and must trust the system to distinguish good care from bad care. What’s needed is something entirely new: specialized health care courts.

Our nation has a long history of expert courts in areas that require technical knowledge or special expertise, beginning early on with admiralty courts. Today we have bankruptcy courts, tax courts, patent courts and a wide range of specialized tribunals in areas from workers’ compensation to vaccine liability.

A proposal for expert health courts has been developed in a joint venture of Common Good, the nonprofit legal reform organization, which I chair, and the Harvard School of Public Health. It promises to restore reliability and foster confidence by incorporating the following features:

» There would be no juries. Instead, specially trained administrative judges, advised by neutral experts paid for by the court, not by lawyers for either side, would make decisions and write opinions on standards of care.

» A liberalized standard of recovery would provide compensation to injured patients based on whether the injury could have been avoided had best practices been followed.

» An individual injured by malpractice would receive 100 percent of his or her actual monetary losses, including future lost income — but damages for pain and suffering would be paid according to a preset schedule depending on the injury. This is how people are compensated in other countries.

» Expedited procedures, including mandatory disclosure by defendants, would ensure quick resolution, avoiding the monetary and psychological costs of drawn-out proceedings.

The advantages of specialized health courts are enormous. A court that writes opinions based on accepted medical standards can provide affirmative guidelines for improving care. The incentives for defensive medicine will be sharply reduced, and a culture of trust will restore candor needed to avoid tragic errors. Patients will receive settlements much sooner, paying only a fraction of what they now pay in legal fees. Most importantly, reliable justice will provide a foundation to restore order to American health care.

None of our aspirations for American health care — better safety, affordability, even empathy — can be realized as long as providers go through the day looking over their shoulders instead of doing what they think is right. The only way to overcome this distrust, and all its debilitating errors and waste, is to create special health courts that are trustworthy.

Phillip Howard is a lawyer and author and is chairman of the nonprofit Common Good, based in New York.