Disappearing Doctors: America's Liability Crisis is Jeopardizing Patient Care Philip K. Howard
Annual Meeting of the American Medical Association's House of Delegates, June 17, 2003 I appear as the chair of a new, bi-partisan coalition, Common Good, which is
dedicated to overhauling America's lawsuit culture. Our board consists of some
of America's most prominent leaders. George McGovern and Newt Gingrich, Alan Simpson
and Paul Simon, presidents of universities, think tanks and hospitals, for example
Dr. Herb Pardes of New York Presbyterian Hospital. My talk has been advertised
as providing an innovative solution to tort reform. What we propose for healthcare,
while certainly a radical departure from the status quo, is based on a premise
which could hardly be more traditional. Nor do we consider it tort reform but
rather an abandonment of a fundamentally flawed legal philosophy. The only way
to restore health to healthcare, we believe, is to establish an entirely new system
of medical justice that affirmatively protects reasonable judgment as well as
provides a mechanism for accountability for errors.
We forget sometimes why law is important. Law is the foundation of all social
dealings. Law is supposed to make us comfortable doing what's reasonable and nervous
doing what's not. Today, law makes us nervous doing anything. Justice has become
a kind of sporting contest, played at the intersection of personal tragedy and
greed. May the best lawyer win. This conception of justice has caused legal fear
to ripple through society, not only to physicians but to teachers, ministers,
little league coaches and all others out in society.
Most people, even reformers, have tended to assume that the system of justice
is immutable, like the ten commandments. Prevailing orthodoxy is that patients,
and 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 -- they
whiz around us like bullets -- 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 long term cure in sight because we haven't let ourselves question the basic
assumptions 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.
"The first requirement of a sound body of law," Oliver Wendell Holmes said, "is
that it correspond with the actual feelings and demands of the community." If
functioning effectively, to quote another great Supreme Court Justice, Benjamin
Cardozo, law upholds "standards or right conduct" that are expressed in the "mores
of the time." The most important test of law is that it be trusted. If law is
not trusted, people begin to feel uncomfortable dealing with each other. They
stop doing what they believe is right. By all of these definitions, our system
of justice is terminally ill.
Our new coalition, Common Good, commissioned Harris Polls to do a nationwide
survey of physicians, nurses and hospital administrators. The results were startling.
Physician distrust of justice is perfect. The Chairman of Harris said that he
had never seen numbers so high. 96% of physicians believe malpractice claims are
brought because of adverse results, not medical errors. And when a claim is made,
83% said they did not generally trust the system of justice to achieve reasonable
results.
Because they distrust justice, physicians no longer feel free to act out their
best judgment. A high percentage admitted to ordering tests that are not needed,
making unnecessary referrals to specialists, prescribing unnecessary medication,
doing invasive procedures, altering what they believe to be humane choices at
the end of life and sometimes even going against the express wishes of the patients
-- all because of legal fear. Many avoid volunteering in emergencies. Many were
regretful that they had entered medicine in the first place. Candor and honesty
have diminished, both with patients and other professionals. Paperwork is altered,
and there's too much of it. A recent report noted that physicians are reluctant
to use email with patients because it leaves a record that might be used in litigation.
The American patient is the biggest loser in all this. The misallocation of resources
is huge. Extrapolating a 1996 study of defensive medicine, the cost of defensive
medicine is probably well over $100 billion. And this is a society where over
40 million Americans are uninsured. All that money could be spent to take care
of people who are uninsured or who are really sick. And what is the cost to a
community when ob-gyns stop delivering babies?
Nor is the system effective in holding bad doctors accountable, because they
invoke their so-called rights. The standard compromise, I am told, is to let the
incompetent doctor leave quietly. There is a scandal in the making, just like
the Catholic priests, as bad doctors are shown the side door and are allowed to
go to the next hospital and practice on unsuspecting patients.
All these phenomena occurred because of distrust of the system of justice. Good
doctors are fearful and bad doctors keep practicing.
Something is terribly wrong here. Healthcare is having a nervous breakdown. How
can we ever fix it if physicians and others in healthcare don't feel comfortable
using their best judgments? From a legal standpoint there must be some fatal flaw
with the current system. And there is. It has to do with our conception of rights.
A few days ago, responding to reports of doctors picketing in New Jersey, a plaintiff's
lawyer reiterated the familiar refrain that no reform should "take away the right
of the injured patients." This is the argument that wins every time. Like savages
before a holy man, whenever anyone invokes their rights we shrink back in terror,
cowed by the possible forces that might be unleashed against us.
What our bi-partisan coalition is saying is that there is no right to sue for
whatever someone wants.
Holmes defined law as "the prophecies of what courts will do." Today in America
no one has any idea what a court will do. That's why doctors are fearful. What's
missing is law. The point of law is to make it clear where you stand and who can
sue for what. Today we have law a la carte. Juries decide the case before them,
without the power to make rulings for the future. Think of how easy it is to bring
a claim. In hindsight, whenever a sick person gets sicker, someone can always
come up with a theory of what could have been done differently. New companies
are being formed to come up with these theories, like the one that's in California
with the catchy name: 1-800-Autopsy.
There's a paradox here. The rights our founders gave us were rights against state
power: government can't take your property or tell you what to say. But a lawsuit
is the use of state power by one private citizen against another. All that is
needed is to convince a jury and the awesome power of government will compel the
defendant to pay 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, and no one on behalf of society
is making rulings of what's reasonable and what's not.
You no longer have the protection of law because judges, awaking to abuses of
authority in the 1960s, abandoned their responsibility to act as gatekeepers of
who can sue for what. Law has no meaning unless the Judge interprets what it means.
As Holmes put it, negligence is "a standard which we hold parties bound to know
beforehand... not a matter depended upon the whim or the particular jury or the
eloquence of a particular advocate."
America 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 goal is to create a system of justice that is reliable for all parties. Because
of the highly technical nature of modern medicine, we believe that requires a
new system of medical justice, perhaps a special court system, like the patent
courts.
What's most important is not to debate what exactly this new system looks like.
First we must change the frame of reference of what law is supposed to do. To
us, the long term goal is not "tort reform," which implies putting band-aids on
a system that does not offer affirmative standards of right and wrong. Gaining
a new system of judicial justice will require a kind of revolution, to make the
public understand exactly what's happened. Changes like this can't happen incrementally.
What's required is for everyone to rise up, along with other interested groups,
including patient groups, and demand it. You have the power; you hold the health
of the country in your hand. To succeed in eliminating random jackpot justice,
we must all get together and demand it. That's the goal of Common Good, and I
hope that we can work together to achieve it. | 
