|
|
|
Does America Need a New System of Medical Justice? Philip K. Howard
AEI-Brookings Joint Center, Washington DC, April 24, 2002 We are here to discuss a question that may strike some as radical, or perhaps
naive: whether America needs an entirely new system of medical justice. I suspect
that most people here don't like what's happened to doctors and malpractice costs
in the last few decades. But most people, even reformers, have tended to assume
that the system of justice is immutable, like the ten commandments. Prevailing
orthodoxy is that patients, indeed all Americans, have a virtually unlimited "right"
to sue. Certainly no one wants to be accused of trying to take away anyone's rights.
But what exactly is the right to sue? We hear about rights constantly but perhaps
we don't think about what they are. And who decides? We know that people assert
claims and they get decided by juries. But we don't think much about who should
have authority to decide.
As is so often the case, accepting the frame of reference has determined the
outcome of the debate. No cure is in sight because we haven't let ourselves question
the basic assumption of who decides who can sue.
This vague, self-help notion of individual rights is tearing at the fabric of
our culture and, ironically, has eroded everyone's individual freedom, including
everyone involved in delivering healthcare. It does so not mainly by the number
of crazy lawsuits--they're only the tip of a huge iceberg. The far greater harm
is the fear of possible lawsuits. For every legal dispute, there are millions
of daily decisions not made or not made reasonably, because of anxiety about possible
lawsuits.
We forget sometimes why law is important. Law is the foundation of all social
dealings. If law is not trusted, people begin to feel uncomfortable dealing with
each other. The test of justice, Benjamin Cardozo observed, is how people feel
about it. If functioning effectively, law upholds "standards of right conduct"
that are expressed in "the mores of the time." By that standard, medical justice
is terminally ill.
Our new coalition, Common Good, commissioned Harris polls to do a nationwide
survey of healthcare professionals. The results, of which you have the summaries,
could not be clearer. The Chairman of Harris said that, in polling, he rarely
sees numbers in the 70s, and virtually never in the 80s and 90s. The level of
physician distrust of justice is perfect: They don't trust patients and their
lawyers: 96% believe malpractice claims are brought because of adverse results,
not medical errors. They don't trust the courts: 83% of doctors said that they
did not generally trust the system of justice to achieve a reasonable result.
What doctors believe is that suits occur because a sick person got sicker, and
the system of justice won't reliably protect the doctor who is unfairly charged.
How that changes the practice of medicine is seen in the rest of the poll, showing
that doctors:
|
- |
Order tests that aren't needed (91% of doctors see this; 79% admit to it themselves) |
|
- |
Make unnecessary referrals to specialists (83%; 74%) |
|
- |
Prescribe unnecessary medication (73%; 41%) |
|
- |
Do unnecessary invasive procedures (73%; 51%) |
In decisions at the end of life, a significant percentage of doctors believe
humane decisions are avoided, even going against expressed wishes of the patient,
because of legal fear.
Other adverse affects include making caregivers less candid, avoiding disclosures
of mistakes, making some doctors reluctant to volunteer in emergency situations,
and diverting resources and time to excess paperwork. The American patient is
the loser in all this. Reputable studies indicate the cost of defensive medicine
alone is upwards of $50 billion, enough to provide insurance to 25 million Americans.
The system is also singularly ineffective in holding bad doctors accountable,
because they invoke their so-called rights. The standard compromise, I'm told,
is to let the incompetent doctor leave quietly. There's a scandal in the making,
just like the Catholic priests, as bad doctors are shown the side door and allowed
to go to the next hospital, and practice on an unsuspecting group of patients.
All of these phenomena occur because of distrust of the system of justice. No
one trusts the system to do the right thing. So good doctors are fearful, and
bad doctors get away with murder.
Something is terribly wrong. Justice must be trusted to distinguish between good
and bad. Yet we have achieved perfect distrust. From a practical standpoint, how
can we ever fix healthcare if professionals within it don't feel comfortable using
their best judgment? From a legal standpoint, there must be some fundamental flaw
with the current system. And there is. And it has to do with our conception of
rights.
The rights our founders gave us were rights against state power: government can't
take your property away or tell you what to say. But a lawsuit is a use of state
power by one private citizen against another citizen; all that's needed is to
convince a jury, and the awesome power of government will compel the defendant
to pay you money. By allowing any self-interested person to make a claim for almost
anything, we've turned the idea of rights upside down: any angry person can invoke
state power against another citizen, with no one making rulings of what is right
and wrong. Juries don't have the power to make rulings; their traditional role
in civil cases is to decide disputed issues of fact, not make value judgments,
such as the proper standard of care. With a jury, win or lose, someone else can
bring the same claim tomorrow. So people never know where they stand.
What's missing is law. The point of law is to make it clear who can sue for what.
Holmes once defined law as "the prophesies of what courts will do." Today in America,
no one has any idea what a court will do. That's why doctors are fearful.
Today in the courtroom, law consists of general principles read to a jury. You
must act reasonably, etc. But the principles of law are dry sticks, and lack vitality,
unless they are interpreted by people with that job, mainly judges. Judges, acting
on behalf of society as a whole, must decide who can sue for what; otherwise justice
is lawless. That's how the common law system is supposed to work. As Holmes put
it: negligence is "a standard which we hold parties bound to know beforehand...
not a matter dependent upon the whim of the particular jury or the eloquence of
the particular advocate."
America today has a defective legal philosophy. The role of law is not only to
condemn what's unreasonable but also to protect what's reasonable. We've forgotten
that second half.
The question to me is not whether America needs a new system of medical justice--it
has to have a new system of medical justice because healthcare has lost the protection
of law. The question for me is what new system would restore trust in all constituencies,
not just caregivers, but patients and others.
Because medicine has become so scientific, and because distrust of the lay courts
is so profound, I believe it's probably necessary to create a special medical
court, not unlike a special patent court. This new court would not have juries
because most healthcare cases turn not on factual disputes, but on medical judgments.
But this is only one idea. The broader point is the one that is more important.
Our legal system must restore the authority to make common choices to decide what's
reasonable and what's not. Otherwise, because of legal fear, we will not get reasonable
choices. The biggest loser is the American public, because healthcare is locked
into what David Broder last week called a "death cycle."
Philip K. Howard is the founder and chairman of Common Good. | |
