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The Wrong Approach to Gain Better Healthcare Philip K. Howard
St. Petersburg Times, November 10, 2002 American law is undermining American healthcare. One out of ten obstetricians
say they are stopping delivering babies, unable to afford increases in malpractice
insurance that, in south Florida, now average over $200,000 per year. Doctors
are retiring early, unwilling to live under the constant threat of a ruinous lawsuit
and disheartened by a professional culture corroded by legal fear. Costs are spiraling
out of control in part because, a recent Harris poll revealed, doctors so distrust
the system of justice that they order unnecessary tests and procedures just to
protect themselves. This "defensive medicine," according to some estimates, may
squander over $100 billion per year. Meanwhile 41 million Americans are uninsured
and senior citizens are often unable to get essential medical services.
Restoring health to healthcare requires fixing our system of justice. But even
minor legal reforms don't get off the ground. What's blocking reform? The bottleneck
was revealed in a recent exchange between Jeb Bush and Bill McBride in the Florida
governor's race. When Bush suggested the need for broad overhaul of the legal
system, McBride countered by saying "it's just another example of finger-pointing,"
noting that "trial lawyers are people" too. McBride went on to suggest that any
solution would require bringing "all the parties" to the table, including "the
people representing the trial lawyers."
But are trial lawyers part of the policy solution, or do they symbolize the problem?
The rhetoric of the trial lawyers has immediate appeal, at least superficially.
The threat of a lawsuit, they argue, leads doctors to provide the best care. But
that incentive works only where justice is reliable to distinguish between good
care and bad care. The problem with American justice is that it's practically
random. Any sick person who gets sicker can come up with a theory of what a doctor
could have done differently. And then the doctor is subjected to a gut-wrenching
legal ordeal that lasts years. A baby born with deformities evokes almost irresistible
sympathy from a jury, whether or not the doctor did anything wrong. That's why
obstetricians are quitting.
Trial lawyers justify ruinous claims-- like a recent $78 million verdict in Arkansas
against a nursing home for the neglect of a 92-year-old resident-- on the basis
that it will teach the defendant a lesson not to do it next time. But who pays
for damage awards? The money doesn't come from the Soviet Union. It comes from
you and me, through rapidly rising costs and health insurance premiums. In 2000,
the legal costs per nursing home bed in Florida were $10,800 per year. That's
almost $1,000 per month that's not available for better care for each of those
residents.
Trial lawyers appeal to our baser instincts, titillating us with the prospect
that maybe we, too, will win at the litigation lottery. But lawyers are the only
group that reliably wins; less than half the money goes to victims. And step back
and look at what this legal addiction does; it not only undermines our common
healthcare system but also corrupts our national character. Many Americans now
believe that getting rich is the cure for losing a loved one.
How else can we deter bad care? The most important accountability, which the
trial lawyers never propose, is to remove the license of an inept doctor or nursing
home so that they can't hurt someone else. Trial lawyers, of course, don't make
much money if the focus is better healthcare, rather than huge verdicts.
Probably their most effective argument is to talk about the "right to sue." Are
you trying to deny victims their day in court? Certainly not. But judges must
draw more clearly the boundaries of who can sue for what. Otherwise people don't
know where they stand, because at present anyone can sue for almost anything.
It is precisely the point of law to draw those boundaries.
Restoring reliability to medical justice requires a kind of legal revolution,
in which legislatures and judges, perhaps in a special medical court, begin again
to make deliberate judgments about what's right and what's wrong, about what's
fair and what's not. These judgments require balancing individual claims against
broader societal interests. Every $1 million to a victim of a past mistake is
a $1 million not available to help thousands of sick people in the future. Having
an unlimited right to sue won't do us much good when all the obstetricians are
gone.
As the single largest contributor to the Democratic Party, the trial lawyers
have considerable political clout. But they don't have a legitimate interest in
healthcare policy. Their goal is big verdicts, not the overall health of Americans.
Reform is not about bringing the trial lawyers to the table, but recognizing that
they have a conflict of interest. Remove their obstruction, and then those who
represent patients and providers can get to work restoring the solid legal foundation
needed to improve healthcare in America. | |
