The Death of Common Sense Philip K. Howard
Ob. Gyn. News, January 1, 2003 The legal tort system of America is corroding the fabric of our society, and
we need a radical overhaul of the underlying philosophy.
The harm to society of our tort system is not the occasional crazy verdict, but
the fear and distrust of the system of justice. For every lawsuit, there are millions
and probably billions of decisions made or not made reasonably, every day, because
of fear of the system. It has literally changed our culture.
It is not just happening to physicians, but in every arena of life. Principals
cannot get rid of bad teachers for fear of lawsuits, Teachers won't touch children--so
the crying second grader can't be comforted--because how do you disprove that
it wasn't an unwanted sexual touching?
Many churches have told their ministers not to counsel troubled parishioners
because there may be a lawsuit if a couple gets divorced or someone commits suicide.
We did a nationwide poll of doctors, nurses, and hospital administrators. The
chairman of the Harris poll said he had never seen numbers so high as the number
of the distrust of the system of justice by physicians. Seven out of eight physicians
said basically that they did not trust the system of justice to achieve a reasonable
result if there was a lawsuit.
The physicians said because of this distrust they ordered tests, referrals, and
even medicines that they did not think were needed. But that is not the worst
of the effects. The Institute of Medicine, in its study of errors a couple of
years ago, said it is very hard to improve the quality of health care when you
don't get reports of near misses or mistakes. We can learn from your mistakes.
But physicians are very reluctant to be candid with each other because it might
be an admission that you didn't know something.
It is as if health care has had a kind of nervous breakdown because we no longer
have the protection of a justice system that anyone thinks they can rely on.
Oliver Wendell Holmes once defined law as the prophecy of what a court will do.
Today in America no one has any idea what a court will do. The point of law is
not to let anyone sue for anything; it is to draw the boundaries of who can sue
for what.
What would a better system look like? The only way in health care to get out
of this predicament that all of Americans find themselves in is to create an entirely
new system of medical justice.
I recently founded an organization called Common Good, and we believe perhaps
that what America needs are special courts, where judges, not juries, make decisions.
The role of a jury traditionally was to resolve disputed issues of fact. Most
of the issues that we are talking about don't involve disputes of fact. They involve
judgments. Judgments are supposed to be made by judges because they affect people
who are not in the courtroom; people need to know where they stand.
Some may say this would trample on rights, but we are not talking about rights.
We are talking about compromise, which is what democracy is about and what law
is about.
The $100 billion we probably spend on defensive medicine is more than enough
to provide medical coverage to the 40 million Americans who don't have it. But
that requires us to restore law to our society. | 
