A Case for Medical Justice Philip K. Howard
The Philadelphia Inquirer, May 16, 2004 Some of the root causes of the current U.S. health-care crisis are unavoidable.
No one, for instance, can change the fact that the baby-boom population needs
more health care as it ages. But there is one underlying problem that has to be
addressed if the crisis is to be solved: our broken liability system.
Headlines have focused on the rise in liability verdicts and the sharp spike
in malpractice premiums - causing some doctors to retire early or leave Pennsylvania
altogether - but those are only the tip of the iceberg. Widespread distrust of
justice has fundamentally altered the practice of medicine. Because of it, billions
of dollars are squandered annually as doctors order tests and procedures of little
or no utility. And doctors and nurses are reluctant to be candid about errors
that might lead to better care.
The distrust that pervades U.S. health care is an inevitable result of a system
of justice that tolerates - indeed, encourages - wildly inconsistent verdicts.
According to a Harvard Medical Practice Study, most people don't sue when there's
a medical mistake; but 80 percent of claims are made against doctors who made
no medical errors at all. Juries often let a doctor who made a mistake off the
hook, but one out of four cases in which experts believe the doctor did nothing
wrong results in payments.
The legal process is not only unpredictable and emotionally wrenching, but staggeringly
inefficient, with legal expenses (for plaintiffs and defendants) consuming 50
percent of total liability costs. Lawsuits go on for years.
Doctors and patients, of course, aren't natural enemies. Both need what justice
today is not providing: reliability. Patients need a system reliable enough to
hold doctors accountable when there's a mistake, and doctors need a system reliable
enough to protect them when they are unfairly accused.
Restoring reliability to health-care justice requires questioning the one assumption
that, until recently, no one dared to even discuss: the role of the jury.
The core flaw with justice today is that no one's in charge; all-important decisions
are made by juries that come and go with each case. Juries can't set precedent;
every jury is different, and decisions are often inconsistent. One jury might
make a huge award in a particular case, and another, in a similar case, might
make no award at all.
Under U.S. law, the role of juries in civil cases is to decide disputed issues
of fact, and the role of judges is to rule on the law. Decisions on proper standards
of care should fall with judges as matters of the law, not with juries.
Today, partly as a result of the increasing complexity of medical science, no
one working on behalf of society is making binding rulings about what is good
care and what is not. No one is deciding when a test is needed and when it is
not. What is missing are established standards of care. Juries, deciding facts
in individual cases, don't have the authority to establish such standards. Unlike
judges' written decisions, their verdicts do not form a body of case law.
The way to create reliability, and also to make the deliberate choices needed
to improve care, is to create specialized health courts. It's impossible to fix
the current mess when no one has the authority to make the choices needed to bring
health care under control.
Since the 1960s, the rise in both medical-liability cases and the complexities
of medical science have been dramatic. But there's virtually no body of law that
any judge could look to in making rulings. Shifting responsibility back to judges
in current courts would begin to instill a measure of consistency, but not necessarily
the wisdom needed to restore trust in health-care justice. Health care has become
highly scientific. Judges in courts of general jurisdiction have no medical training.
The outlines of a health court could vary, but the basic components seem clear.
Health courts would be staffed by judges with medical training. The judges would
have the authority to hire neutral experts, instead of having experts-for-hire
who now confuse and prolong malpractice cases. To reduce legal fees and emotional
toil, proceedings would be expedited, so that injured patients would be able to
keep more of any award.
The primary goal of a specialized health court should be patient safety. This
requires reviving or inducing a culture of open communication. With an expert
health court, doctors could have the confidence that they would not be penalized
for admitting uncertainty or error in the candid back-and-forth in hospital corridors
and examining rooms.
Reliable accountability is critical in overcoming the distrust that infects daily
choices and the doctor-patient relationship. Patients injured by medical mistakes
should be compensated fairly. Doctors who are unjustly accused should be protected.
Doctors who are not competent should lose their licenses. An expert court could
make these types of decisions reliably and consistently.
Creating a health court might seem like a radical proposal. But health care in
the United States is in meltdown. Specialized courts are common in such areas
as taxes, workers' compensation, labor issues and vaccine liability. An expert
court or tribunal has long been recognized as the sensible solution in situations
where there is a crisis of distrust. U.S. Sen. Michael B. Enzi (R., Wyo.) has
introduced a bill to fund pilot programs for a health court, and several of the
nation's most prominent hospitals, including New York-Presbyterian Hospital, have
indicated an interest in offering themselves for the experiment. Creating a special
medical court is an ambitious undertaking and presumably will be opposed by trial
lawyers, for whom the unreliability of the current system is an advantage. Creating
such a court, however, will help to strengthen one of the oldest and most basic
principles of the U.S. system of justice: that like cases be decided alike.
We don't really have a choice: The distrust that is eating away like a cancer
at U.S. health care cannot be cured until justice in health care is made reliable. | 
