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Views on defensive medicine, health courts advocated

The following letter from Philip Howard appeared in the Wall Street Journal on February 15:

Tort reform caps only noneconomic damages, such as pain and suffering. A doctor can still be liable for millions for a lifetime of care for a baby born with cerebral palsy, even though the doctor did nothing wrong.

The only cure for defensive medicine is a system of justice that reliably distinguishes good care from bad. That's why a growing consensus, including President Obama, Mitt Romney and the Simpson-Bowles proposal, calls for creating special health courts. The cure for the disease of unreliable justice is reliable health courts.

Howard's letter accompanied several others, including this from an Arizona doctor:

The cost of defensive medicine doesn't lie in the additional study ordered "just to be sure" or to fend off a potential future liability claim from the patient being seen today. The continued presence of a malpractice threat has moved practice standards so that they incorporate the underlying risk and raise the cost of health care that isn't measured by changes in health-care spending with tort reform. Over time, constant malpractice pressure has changed what was once ordered "just to be sure" into the standard community practice.

A doctor from Salt Lake City adds:

The best place for medical malpractice is administrative law, not tort courts. That transition may not reduce the total amount of rewards paid by liability companies but the money will go to more injured patients and to fewer attorneys, and the physicians who cause harm can be dealt with in a far more effective fashion. I project the overall savings will be larger or at least produce a better picture of the cost of defensive medicine. But it will never happen because of the trial-lawyers lobby.

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Why America needs health courts

From The Providence Journal, February 15, 2013:


U.S. health-care costs keep rising, because Congress won't address the skewed incentives imbedded in the underlying legal structure. One basic reform - creating reliable health courts - would save tens of billions of dollars a year. Leaders of both parties, including President Obama and Mitt Romney, call for it, as does the Simpson-Bowles debt-reduction plan.

But this one obvious reform, which would probably save each American family more than $1,000 a year, has been blocked by a tiny special interest - the trial lawyers. America cannot avoid a fiscal crisis until it figures out how to overcome the stranglehold of this and other special interests.

Physicians and nurses distrust the current medical-liability system, because it does not reliably distinguish good care from bad. This causes doctors to practice defensive medicine, ordering tests and procedures not based on medical necessity but to protect themselves from possible lawsuits.

Defensive medicine is notoriously hard to measure, with estimates from about $45 billion to more than $200 billion annually. Defensiveness also leads to tragic errors, because doctors and nurses are trained to avoid speaking up - "Are you sure that's the right dosage?" - out of fear of taking on legal responsibility.

The distrust of the current system is amply justified, because it has an error rate of 25 percent according to a 2006 report by experts at the Harvard School of Public Health. The unreliability is hardly surprising since the current system lets lawyers argue almost anything - often with bogus experts - and present an emotional appeal to a lay jury whose members have no way of knowing what other juries or judges have decided in similar circumstances.

The current system also badly serves patients injured by medical mistakes. It takes an average of three to five years to resolve a claim and wastes almost 60 percent of an award on lawyers' fees and administrative costs. And in about 25 percent of the meritorious cases, the injured patient gets nothing.

Unreliable justice helps only one group - the trial lawyers, who can use the possibility of a rogue jury verdict to extort large settlements in tragic cases.

All these counter-productive effects of unreliable justice - including the huge waste of defensive medicine - can only be eliminated by creating specialized administrative health courts. The concept of health courts has been championed by Common Good - the nonpartisan government- reform coalition that I chair - working in conjunction with experts at the Harvard School of Public Health, with funding from the Robert Wood Johnson Foundation.

Health courts would have judges dedicated full-time to resolving health-care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in complex areas where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers' compensation, vaccine liability and other specialized areas.

The public sees the need for reliable health-care justice. The health court concept has also been endorsed by virtually every legitimate health-care constituency, including medical societies, patient-safety organizations and such groups as AARP.

Only the trial lawyers oppose health courts. Whom do they represent? Not injured patients, who are badly served by the time-consuming and unreliable system. Not the American families who must pay the rising cost of care. Not the doctors and nurses who must go through the day looking over their shoulders instead of caring for patients.

The trial lawyers represent only themselves - because they feed off the fear that a jury might render a ruinous verdict whenever there's a tragic medical result, even where the doctor did nothing wrong. It is precisely the fear sown by trial lawyers that causes defensive medicine.

Special interests undermine the promise of democracy. Everyone sees the problem here. Justice is supposed to be reliable, not a lottery. We can never fix the wasteful costs of health care until we provide a reliable system of health courts. Why are we waiting?

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Hospitals & Health Networks interviews Philip Howard on health courts

For their February issue, the health care magazine Hospitals & Health Networks spoke with Common Good Chair Philip K. Howard about creating health courts. These courts would establish fair and reliable medical justice while saving billions in defensive medicine waste. This reform would help both patients and doctors by creating a more efficient system driven by reliability rather than fear. As Howard puts it:

In any complex service delivery system you need openness and transparency. And what the Institute of Medicine has found is that defensiveness encourages professionals not to use their peripheral vision, not to speak up--'Are you sure that's the right dosage?'--because they're fearful of taking legal responsibility. They're afraid of speaking up when it's not their patient; you can't get into trouble if you don't do anything. Tragic errors might have been caught if people were simply being spontaneous and acting on their best judgment.

Read the whole article here, and find out more about Common Good’s proposal here.

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Are we in the end times of trust in government?

From The Washington Post, February 7, 2013:

It’s no secret that the American public views its elected officials with some combination of disgust, disappointment and distrust. Congress’s approval rating is in used-car-salesman territory, and with every legislative crisis it dips, somewhat amazingly, lower.

But, as bad things are, there is a tendency to assume that the current attitude toward the federal government is sort of how it always has been. Except that it hasn’t always been like that.

This chart is taken from a broader interactive project from the Pew Research Center that aims to document public attitudes toward the federal government from 1958 to the present day. It documents the percentage of people who said they trust the government in Washington either “just about always” or “most of the time.”

There are any number of interesting storylines in the chart  – for much of the 1960s, more than seven in 10 people expressed considerable trust in the government in Washington! — but what struck us most was how the current low period of government trust is, unlike past periods of distrust, seemingly unconnected to an obvious event or events.

When public trust in government collapsed from 53 percent in 1972 to 36 percent in November 1974, it made sense. The Watergate investigation, which led to the resignation of President Richard Nixon, was just the sort of ugly — and prolonged — episode to make public perception of government erode in a relatively rapid manner.

Ditto the historically low trust ratings reached in Pew polling in the early 1990s, as a series of congressional scandals — with the House Bank scandal being the most prominent — produced large amounts of media coverage focused on what the heck politicians were doing in the nation’s capital.

But the recent drop, which began in earnest after the goodwill toward Washington surrounding its actions in the wake of the Sept. 11, 2001, attacks wore off, seems disconnected to any single notable event. There have been a fair share of legislative standoffs and scandals in recent years, but nothing nearly as heavily covered or broad as Watergate or the House bank.

Instead, it appears to be a political death — or at least bloodletting — by a thousand cuts. No one event is to blame. Rather, something even more corrosive to government appears to be happening — a steady and growing belief that politicians in Washington are simply not to be trusted.

(It’s worth noting that this decline in trust in government has corresponded with a decline in trust in other major pillars of American life — from the financial sector to sports. Thanks a lot Barry Bonds and Mark McGwire!)

The depressing reality of Pew’s long-term trend on trust in government is that there is no obvious cure for what ails the body politic these days. Without a clear cause, a sure solution isn’t available. It’s possible that we are simply in a new era in which trust in institutions like our government simply won’t ever approach — or come close to approaching — its historic highs.

The end times of trust in government may well be upon us.

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Video: Is America a “Kludgeocracy”?

Liberals and conservatives may disagree about the appropriate size and reach of the federal government, but according to Johns Hopkins professor Steve Teles, that debate is largely a red herring. In his article "Kludgeocracy: The American Way of Policy," Teles suggests that the most important questions about modern American governance concern efficiency rather than scope. "The issues that will dominate American politics going forward," he writes, "will concern the complexity of government, rather than its sheer size."

Teles presented the idea of "kludgeocracy" in Common Good’s 2010 forum on "Fixing Government Paralysis;" here are some of his comments:

From healthcare to education to infrastructure, the works of government are gummed up by convoluted, piecemeal, and reactionary laws and regulations. As Teles puts it, "For any particular problem we have arrived at the most gerry-rigged, opaque and complicated response."

Philip K. Howard, founder and chair of Common Good, made a similar case recently in The Atlantic: "Simplification does not mean eliminating government oversight. It makes oversight better by allowing people to use their judgment. Rules can't think. Nor does it give tyrannical powers to officials. Checks and balances can safeguard against abusive decisions--but these checks must also be based on judgment."

That’s why Common Good is producing issue briefs that describe common sense reforms to simplify government, cut deficits and create jobs in our economy. Take a look at our briefs on education, obsolete law, infrastructure, and more here. And read Steve Teles’s essay here.

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Video: “Need to Know” looks at our medical malpractice system

On the second of two inauguration specials examining Common Good’s proposals to end bureaucratic gridlock and get the United States moving forward, “Need to Know” anchor Jeff Greenfield explores how malpractice lawsuits contribute to rising healthcare costs. Correspondent William Brangham travels to Denmark, where medical disputes are settled by experts without ever going to court. Here’s the video:

For more information, read Common Good Chair Philip K. Howard’s recent essay on Health Courts at the Health Affairs blog.

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Video: PBS looks at the obstacles to rebuilding America’s infrastructure

On the first of two inauguration specials examining Common Good's proposals to end bureaucratic gridlock and get the United States moving forward, "Need to Know" anchor Jeff Greenfield explores why it now takes nearly four times as long to complete infrastructure projects in the United States than it did in the 1970s.

Here’s a 90-second preview from WNET:

Watch the full program here or below:

For more information, download Common Good's issue brief "Rebuilding America: Fixing the Infrastructure Process".

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Common Good online forum on obsolete law solutions

Obsolete law is a significant––yet largely ignored––cause of government budget deficits and an obstacle to economic growth. Yesterday’s laws and regulations do not adequately address today’s needs; worse yet, they often senselessly tie the hands of government officials and Americans in every sector of society, preventing them from making common sense decisions to address challenges or create opportunities.

For these reasons, Common Good is hosting an online discussion of obsolete law and what to do about it––enabling leading experts to engage with concerned citizens.

The discussion will begin December 12 at www.newtalk.org and will continue through the coming week. Among the participating experts are:

  • E. Donald Elliott – former General Counsel, U.S. Environmental Protection Agency; current partner at Willkie Farr & Gallagher; Adjunct Professor at Yale Law School;
  • Mary Kiffmeyer – Member, Minnesota House of Representatives; former Secretary of State of Minnesota;
  • James Maxeiner – Co-Director of the Center for International and Comparative Law, University of Baltimore School of Law; author of the book Failures of American Lawmaking in International Perspective;
  • Stuart Taylor, Jr. – author and journalist, who has written extensively on legal and policy issues and has taught “Law and the News Media” at Stanford Law School;
  • Ron Faucheux – former member of the Louisiana House of Representatives and a U.S. Senate chief of staff; currently President of Clarus Research Group.

The topic of this online discussion is straightforward: What approach would you recommend for addressing obsolete law, and why and how would you implement it? The experts will each share their perspectives, engage in an online discussion, and respond to members of the public, who are invited to comment as the discussion unfolds.

Follow the conversation and add your thoughts at www.newtalk.org!

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Health Courts offer common ground between former rivals

In an era of divisive politics, it’s critical that leaders on both sides of the aisle recognize those areas where progress can be made independently of party lines and political interests. As President Obama and Governor Romney meet for lunch today at the White House, one such issue where common ground may be found is health courts.

Both candidates—in addition to numerous members of Congress—have expressed support for the health courts model of medical malpractice reform, which would decrease costs, increase reliability and improve access for patients.

Now is a good time for these two leaders to join together in pushing health courts as a bipartisan step forward for American healthcare.

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Defining “Big Change”

Common Good Chair Philip K. Howard, in a new article for The Huffington Post, outlines a bold platform of eight structural reforms to address the unsustainable waste and inefficiency that plague government. "These changes would balance the budget, end government paralysis, and begin to transform America's public culture," he writes. "Americans know we need it. Are any leaders bold enough to say it?"

Howard’s proposed reforms include radically simplifying regulation, freeing schools from crushing bureaucracy, cleaning out obsolete laws and programs, and ending tax subsidies for the rich. Read the rest of his proposals here.

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