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Is the Medical Justice System Broken? Philip K. Howard
51st Annual Meeting of the American College of Obstetricians and Gynecologists (ACOG), April 28, 2003 Click here for a transcript of UVA law professor and CG Advisory Board member
Jeffrey O'Connell's speech.
Click here for coverage of the event.
First, as a father of four children who survived that remarkable and scary miracle
called birth, I genuinely thank you. Because of various complications, they would
not be here were it not for your professional skill, specifically that of Drs
Equinn Munnell and Wolfgang Tretter, and their colleagues at New York Presbyterian
Hospital. All four babies even passed their apgar test.
Second, let me confess. I am a lawyer. Lately I find myself invited to healthcare
conferences, sometimes billed, such as one convened by Secretary Thompson, as
bringing together 25 leading thinkers on health in America. In truth, it was 24
experts plus one lawyer who doesn't actually know much about healthcare.
What I've tried to think hard about for almost fifteen years is the relationship
between legal structures and daily choices, and the ability to run our common
institutions. What I've concluded is there's a fatal flaw in our system of justice,
an unintended side effect of reforms from the 1960s. So as not to hold you in
suspense, the flaw is this: Justice is not supposed to be neutral process, with
standards decided jury by jury. Law that changes from case to case is not the
rule of law, but the opposite. Law is supposed to be reliable. "The basic moral
principle, acknowledged by every legal system that we know anything about," Yale
law professor Eugene Rostow once observed, "is that similar cases should be decided
alike." Instead of reliability, justice today is more like a free-for-all. Anyone
can sue for almost anything. The results, studies show, are worse than random.
Most patients injured by error get nothing; most don't even sue. Many doctors
who did nothing wrong are held liable, particularly in tragic circumstances, such
as a child born with cerebral palsy. The effects of unreliable justice, as we
will see, are almost perfectly counterproductive. Doctors lose. Patients lose.
The healthcare system spins out of control because no one's in control.
The good news here is that there's a clear, principled reason why this system
fails you so badly. Clarity can have enormous power. The bad news is that changing
the public perception of what justice is supposed to be will require a kind of
revolution.
Last year we organized a bi-partisan coalition called Common Good, dedicated
to restoring the foundation of reliable law. Our board consists of some of the
most prominent leaders in America. Co-chaired by former Gov Tom Kean of New Jersey,
it is probably the only board that has both George McGovern and Newt Gingrich.
Other directors include Griffin Bell, Sen. Alan Simpson, Sen. Paul Simon, Dick
Thornburgh, university presidents, heads of think tanks on both sides of the aisle.
We don't see ourselves as promoting merely tort reform, which implies putting
caps on crazy verdicts. The harm we see is not just the crazy verdicts. But they're
only the tip of the iceberg. The far greater harm is the legal fear that now infects
daily choices. This legal fear is literally tearing at the fabric of our culture.
Before we focus on healthcare, it is important to understand that how the flaws
in justice affect all aspects of society, because you're going to need their help.
Visit a school. It is hard to find a teacher who hasn't been threatened with
legal claims. In many big city schools, it's practically impossible to maintain
order in the classroom. I recently saw a photograph of a teacher with her hands
crossed in front of her with a small child leaning against her crying. The teacher
obviously wanted to put arms around the child but most schools forbid touching
because who will defend you if someone claims an unwanted sexual touching? Some
schools now have videotapes in classrooms (some doctors do too). How does a principal
run a school when practically any management decision can subject to you to an
adversarial proceeding with lawyers and cross-examination? Standard operating
practice is to avoid any decision that someone might disagree with. A committee
of superintendents from Pennsylvania discovered a couple of years ago that 13
teachers had been dismissed for incompetence in the State of Pennsylvania ...
since 1957. In California forty-four out of over two hundred thousand tenured
teachers were dismissed for all causes during a five year period in the 1990's.
Even the simple pleasures of childhood are affected. Playgrounds have been transformed.
Seesaws are disappearing, not because any regulator has determined that seesaws
are unreasonably dangerous, but because the word got out that you might get sued
if one child gets off too soon and another came crashing down. Some playground
experts say playgrounds are so boring that children over the age of four won't
go in them. Older children make up dangerous games like crashing their bicycles
into the equipment. At the recent conference with Secretary Thompson a panel discussed
the problem of child obesity and suggested that we should promote a culture of
physical fitness in children. That's exactly what JFK's Council on Youth Fitness
did in the early 1960s, by funding jungle gyms and other exciting playground equipment.
They've all been ripped out because of legal fear.
Archeologists in a thousand years will dig us up and may not realize schools
are out of control and seesaws were ripped out. What they will see in black and
white are all the warning labels. They'll give us a name; instead of the Age of
Reason, we'll be the Age without Reason. "Caution: Contents are Hot" on billions
of coffee cups. My favorite: "Remove Baby Before Folding Stroller."
Now let's look at what unreliable justice has done to American healthcare.
1.You know better than I what it's done to your ability to practice, as liability
premiums have doubled and tripled, leading some doctors to move to different states,
or abandon practice altogether. Patients lose when doctors quit.
2. Patients also lose when legal fear stifles openness and ordinary interaction.
Studies by the Institute of Medicine and others show how a culture of legal fear
makes it hard to learn from our mistakes, and even to have humane dealings in
the times when patients need it most. Many doctors won't use e-mails for fear
leaving a written record. All of this undermines the quality of care.
3. Access to care has also been affected. We did a Harris Poll last year, showing
nearly universal distrust of the system of justice by doctors. Most doctors admitted
to ordering test, even doing invasive procedures that they believed were unnecessary,
just to provide a record in case of a lawsuit. While it is difficult to quantify
the cost of defensive medicine, some studies suggested that it is more than $100
billion per year, more than enough to provide healthcare insurance to the forty-one
million uninsured Americans.
4. Costs are spiraling out of control, causing at least one strike this year,
by GE workers. Cost containment requires deliberate judgments of how much care
we get for what kinds of illness. How can we make those judgments when the legal
system allows anyone to sue for almost anything? Who's representing the broader
interest of society?
5. Accountability. The irony in this system, which lawyers defend in the name
of accountability, is that it makes it very difficult to hold inept doctors accountable.
The typical pattern, I'm told, is that when a doctor is about to be dismissed
from a hospital he hires a lawyer, threatens to sue for defamation, and then the
settlement is to sanitize the record and let the Doctors slip out the side door,
free to practice on unsuspecting patients elsewhere.
6. There are many other effects as well. For example, the impact on professional
satisfaction when you go through the day looking over your shoulders. It's similar
to living under the shadow of a tyrant, except the tyrant is the legal system
that's supposed to be protecting your reasonable actions. No one even thinks about
the affirmative benefits of having a reliable legal system. A functioning legal
system can actually provide incentives to improve healthcare. A reliable legal
system would provide payment to those injured by mistakes without consuming over
50% in legal costs. You'll hear about one good idea in that regard from Prof O'Connell.
What all these stories have in common is that Americans no longer trust the system
of justice. We've all been brought up to believe America has the fairest system
of justice in the world. We know it's fair because it's neutral. Anyone can bring
a claim, go before a judge who's not allowed to make value judgments, and then
have the case either proved or not in front of a jury. But there is a flaw in
the premise: none of the choices we are talking about are matters of proof. They
all require a value judgment. Are seesaws worth the risk or not? Do we want doctors
to give aspirin for a headache or consume vast resources in CT scans? These require
value judgments. Of course juries are generally sensible. But if the judgments
are made case by case, then no one ever knows what's right and what's wrong.
What's missing is the core idea of law. Oliver Wendell Holmes, Jr. famously defined
law as "the prophesies of what courts will do." Today in America no one has any
idea what a Court will do. What that means is that we have lost the protection
of law. The effects of powerlessness ripple through our daily choices. It's as
if we've built a huge monument to the unknown plaintiff, casting a shadow across
our daily choices.
So what do we do about it?
This has been quite a year for the medical profession. Liability insurance premiums
doubled and tripled for some obstetricians, and now cost over $2,000 per birth
in areas like south Florida. The crisis was hardly ignored, and, almost daily,
headlines reported on strikes by doctors in West Virginia and New Jersey, of trauma
centers closing down and doctors abandoning certain states. The President and
numerous governors took up your cause. The proposed reform, far too modest in
my view, was to limit non economic damages to $250,000.
But reform may be stalled, notwithstanding the tireless efforts of leaders like
Charles Hammond, and Donald Palmisano and Yank Coble of the AMA. The trial lawyers
bring out the victims of gross error like the woman who lost both breasts to surgery
when she didn't have cancer. "Why are you trying to take away the rights of a
patient who was grievously harmed by a doctor's carelessness?" The lawyers run
tasteless ads showing a photo of a deformed child in a wheelchair with the headline
"another winner of the malpractice lottery." They cite facts, as Sen. John Kerrey
recently did, that malpractice premiums constitute only six tenths of 1% of the
total healthcare costs. Of course it's a much higher percentage of physician income.
There's an almost irresistible appeal to the opportunity to "get" whoever made
a mistake. The threat of a lawsuit, lawyers argue, will make doctors be more careful.
That's valid, of course, only if justice is reliable. But never mind. It sounds
good. After a year of acrimonious and loud debate, many in the public probably
believe that the choice is between the rights of patients and the pocketbooks
of doctors. That's a formula for stalemate.
But doctors and patients aren't natural enemies. There's nothing anti-patient
about making justice reliable, including limiting non-economic damages--it will
reduce the cost of healthcare for everyone, as well as keep doctors on the job.
Reform is stalled, in my view, mainly for another reason. It has to do with an
assumption about the goals of justice. As soon as the plaintiffs' lawyers ask
the question-- "Why should you limit a patient's right to sue?"--you've lost the
debate. Even tort reformers have gone along with the assumption that justice gives
everyone the right to take any claim, even a spurious one, to a jury. That's the
reason the proposed reforms try only to limit certain damages, not address the
underlying unreliability. (While limiting pain and suffering damages is obviously
useful, the reform,especially for obstetricians, is hardly complete. After all,
you can still be liable for a lifetime of care for a baby when you did nothing
wrong.) When push comes to shove, the idea of limiting someone's alleged rights
will almost always be a loser.
But what about your rights to a system of justice that is reliable?
I recently had breakfast with Bill Moyers, and we discussed the need for a basic
shift in public attitudes about the goals of justice. I hate to break the news,
but, for any large reform, legislatures are a lagging indicator. They won't act
until the public understands that they'll never get top quality or affordable
healthcare until we have a reliable justice system that honors the deliberate
judgments needed to make the healthcare system work.
What's needed here is a campaign to the American public. For the last year we
have been sponsoring forums with AEI and Brookings to collect the best studies
and ideas on the effects of law on healthcare. Recently 70 prominent leaders of
healthcare-- Deans of major medical schools, leading patient safety experts such
as Harvard's Don Berwick and Troy Brennan, heads of major hospitals, your own
Charles Hammond, issued a petition calling on Congress to create an entirely new
system of medical justice. The first goal, the petition stated, "is to be reliable
- reliable to protect patients against bad practices, reliable to protect the
caregivers who act reasonably and reliable to interpret standards of care so that
all of the participants know where they stand and where they must improve."
In a few weeks we will announce a second petition signed by dozens of university
presidents, former senators and attorneys general, heads of think tanks, CEO's
of major companies. But these petitions are only the beginning, a useful first
step to lend credibility to this radical demand to create an entirely new system
of medical justice.
Now we're ready for the real campaign. Like any campaign, it requires thousands
of people who care. For example, each of you could hang the petition in your office,
and provide a mechanism for your patients and friends to add their names to the
petition, as well as continue to get them to contact their congressmen. Like any
campaign, this one requires funding for manpower and marketing. Many of us, including
me and your leaders, are doing this without pay. But we'll never succeed without
funding. Here as well, you can help.
Ideas matter. Vocabulary is critical. For decades everyone has talked about justice
as a matter of the "rights" of the victim, and justice has been played out at
the intersection of personal tragedy and personal greed. The language of rights
is so powerful that when anyone asserts their rights we shrink back in terror,
like savages before a holy man.
What we're saying, and what the American public must come to understand, is that
this emperor has no clothes. The language of "rights" is just one –sided rhetoric,
as my friend Professor Cass Sunstein said, "conclusions masquerading as reasons."
The task of justice in a free and functioning society is to reliably balance the
predicament of the individual with the interests of the common good. Whose rights,
the child who fell off the seesaw and wants to sue, or the millions of children
who want to use seesaws? We can't have it both ways-- allowing one child to sue,
even if he doesn't win, means that seesaws disappear. A common choice must be
made as a matter of law-- this is not a question of rights. Whose rights, the
person who wants millions because a child was born with tragic illness, or the
countless patients who don't get care because of the rippling effects of a system
that is almost universally distrusted?
There is a paradox in the language of rights. The Rights our founders gave us
were rights against State power-- government can't tell us what to say or take
our property away without due process. These new rights involve the use of state
power in the form of a lawsuit, coming down to that fateful jury verdict, after
which a government marshal may compel you to pay millions of dollars to someone
else. The new rights allow private individuals to use state power against other
private citizens, but without anyone on behalf of society making judgments of
what is reasonable and what is not. We have literally turned the idea of rights
upside down, allowing self-interested individuals to use law as a weapon of extortion.
After President Bush called for liability reform last summer, Sen. John Edwards,
a former malpractice lawyer, stood over the grave of a child that died as a result
of medical mistake. Edwards as a lawyer had gotten over $20 million dollars for
the family in a lawsuit. Standing over the grave, he said that this family certainly
didn't think they hit the jackpot. Indeed they didn't. Making the family rich
can never make up for the loss. Isn't the better form of accountability to make
sure it doesn't happen again? And who paid all that money? No one ever asked the
question. The money doesn't come from the Soviet Union. It comes out the healthcare
system. It is impossible to trace, but people somewhere lost their lives because
$20 million was not available to take care of them. While it is true that no family
which lost a loved one could ever be said to have hit the jackpot, the same can't
be said of John Edwards. If he got the usual fee, he pocketed more than $7 million
because of their personal tragedy.
Americans today are confused by a legal system that holds the promise of no bad
results, and yet, as a consequence of this fool's gold, sees a system of healthcare
that is melting down. What's needed to accomplish any meaningful reform is to
change the public perception of the goal of justice. Justice is not supposed to
be an ad hoc plebiscite that tolerates conflicting rulings on what is good care
and what is not. Justice must be reliable. Justice must be predictable. Justice
must make deliberate judgments. Otherwise it is not justice. We will never get
a solution, I believe, until the American public understands this.
That's why it's so important to work together. It's a great cause. And, looking
around, I don't see that we have a choice.
Thank you. | |
