The Blog

News and stories from the campaign to reclaim individual responsibility and liberate Americans from bureaucracy and legal fear.

Blog — Health Care

Philip Howard Appears on “A Closer Look with Arthur Levitt”

Philip Howard recently sat down for an extensive conversation with Arthur Levitt on his Bloomberg Radio program “A Closer Look with Arthur Levitt.” Topics of discussion with the former SEC chairman included the civil service system, environmental review, education, and presidential authority.

Click here to listen to the interview.

Comment ›

Health Courts Gain New Momentum in Congress

Press release (pdf)

Comment ›

Affordable Health Care Requires a New Legal Framework

Howard's Daily by Philip K. Howard

There are three major structural causes of unaffordable health care in America. One is defensive medicine (3-10% of total costs), caused by unnecessary tests and procedures done in part to help protect doctors from possible lawsuits for not "doing enough." Second is the "fee-for-service" reimbursement system, which incentivizes providers to provide more (not better) care, accounting for an estimated 20 to 30% of extra costs. The third is bureaucracy—a torrent of bureaucracy—that invades every nook and cranny of caregivers’ days, costing twice as much per capita as the next most bureaucratic state, or an extra 15% of the healthcare dollar on excess administration. Doctors spend over 20% of their time on what used to be known as paperwork.

None of these sources of waste is a secret. The drafters of Obamacare tried to deal with aspects of them, as Ezekiel Emanuel recounts in his new book, Reinventing American Health Care. But change is hard. Change scares people. Change disrupts special interests. When things are working really badly, anarchist Peter Kropotkin observed at the turn of the last century, people cling even harder to the status quo, "lest [change] may make him more wretched still."

Change happens, but typically when the old system collapses. Wasting a trillion dollars a year on inefficient health care—that’s about $10,000 per family—will eventually cause the branch to break. So what should the new system look like?   

Solving these problems requires entirely new frameworks. Fee-for-service systems should be replaced by "accountable care organizations," in which a provider takes care of all of a person’s health needs for one annual fee. When a patient needs specialized care, it should be done as "bundled payments," basically a fixed fee for everything to do with that problem.  

Defensive medicine is the area of waste that Common Good is trying to solve. What’s needed is clear: replace unreliable jury-by-jury verdicts (and years-long emotionally-charged proceedings) with expert health courts that reliably sort good care from bad care. Only then can doctors go through the day relying on their best judgment instead of listening to a little lawyer on their shoulders. See here and here

The Obama administration and Dr. Emanuel have been helpful in advancing the cause of reliable healthcare justice; for example, in 2011 Obama presented a budget that included $250 million to help fund medical justice reform initiatives, including special health courts. I met and spoke with Dr. Emanuel several times during his tenure as a key healthcare adviser. 

But Dr. Emanuel is not accurate in suggesting that the Affordable Care Act advances the cause of reliable justice. Yes, early drafts of the Act included provisions for pilot projects of alternative systems of justice. But Senate Majority Leader Harry Reid is a champion of trial lawyers. In the law as enacted, these pilots are permissible only if they "provide[ ] patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time."

Keeping the jury, of course, eviscerates the whole idea of consistent decisions. One jury can decide a case one way; another jury on the same facts can decide exactly the opposite way. Most studies suggest that an expert court would be fairer for injured patients as well as more reliable for innocent doctors. But the Affordable Care Act is unwilling to countenance a pilot project that doctors could rely upon.

President Obama’s heart certainly seems to be in the right place on this issue. But it will take more than a suggestion to an obdurate Senate to advance this reform. The public, polls show, overwhelmingly supports special health courts. But no change is likely to happen until there’s firm leadership from the President, or a crisis.

Comment ›

Medical “Safe Harbors” Require Expert Health Courts

Restoring reliability to the medical malpractice system, Peter Orszag (former head of OMB under Obama) periodically reminds us, could avoid the vast waste of "unnecessary tests and treatments" ordered only because doctors "believe it will protect them from a lawsuit."

This week on Bloomberg View Orszag suggests that the solution is to create "safe harbors" for doctors who follow national guidelines. An added advantage is that doctors will feel compelled to keep up with national best practices instead of following “customary-practice standards” of the local community.

These strike me as good ideas with two very significant caveats:

First, who decides what qualifies for the "safe harbor"? Each patient presents a complex set of facts—say, a sore throat, aching ear, a slight fever. What if it escalates into a debilitating disease? Who decides whether the advice of taking two aspirin was appropriate? With the benefit of hindsight, any adverse medical event might have been handled differently. Certainly any lawyer could readily conjure up reasons why his client’s situation doesn’t quite fit the criteria of a safe harbor. So…does a jury decide? Do you think doctors would trust a jury to reliably sort out what qualifies for a safe harbor, while looking at a plaintiff who suffered from a terrible disease? There’s not a chance, in my view, that doctors would trust that system. Defensive medicine would continue to waste tens of billions every year.

Safe harbors won’t work without a reliable decision-maker. That’s why America needs expert health courts—where specially-trained judges, advised by neutral experts, decide each case with written rulings that strive to apply best practices to each fact situation. The health court proposal, developed by Common Good and the Harvard School of Public Health, has been endorsed by a broad coalition of doctors, patient safety experts, consumer groups, and every budget deficit commission. See here and here.

The second problem is that safe harbors will not cover the universe of malpractice disputes, and won’t be relevant to many cases. Some patient situations will be completely unique. Do those cases go back to the current ad hoc jury-by jury system, which has an error rate of about 25 percent? Will doctors really stop practicing defensive medicine when they’re not sure which cases will qualify? Here as well, special health courts can fill the gap. Even if a case does not fit within the safe harbor, doctors will be able to trust that an expert health court will strive to decide in accord with best practices.

The bottom line: Safe harbors are a good idea to incentivize doctors for better care, but won’t be effective to do that, or to end defensive medicine, without an expert health court that doctors trust.

Comment ›

The Flaw of Regulatory Perfection

Howard's Daily by Philip K. Howard

There’s a wide chasm between those who write regulations and the humans expected to abide by them. Real people don’t have the capacity or time to understand, much less comply with, scores of regulations. This is a reason why regulation so often is counterproductive. People preoccupied with rule compliance no longer act sensibly. Focus on A, as sociologist Robert K. Merton put it, and you cannot see B.

Healthcare delivery in America has been suffocated by bureaucracy. How this affects the daily choices of physicians is described by Victoria McEvoy from Harvard Medical School in today’s Wall Street Journal. Regulations presume to guarantee proper care by forcing doctors to go down checklists of every possible treatment associated with, say, an obese child. The problem, of course, is that all this time checking boxes "takes precious time away from doctor-patient communication. Not one of my patients has lost a pound from my box checking."

Like marionettes in a dystopic puppet show, all day long physicians are jerked away from sensible patient care by regulatory mandates written without any concern for human bandwidth. But doctors aren’t computers. Sometimes the box needs to be checked—did the surgeon double-check all requirements?—but most regulatory requirements are in service of a form of central planning, as often requiring useless activities as those that make sense.    

Follow all these rules, regulators think, and health care will be perfect. But regulations can’t honor the complexity of the actual patient situation that the doctor is facing. So, when "one metric is off," regulations compel doctors to take certain actions, even where those actions make no sense.    

The fee-for-service reimbursement bureaucracy multiplies the box-checking and skewing of sensible judgment (doctors spend 30% of their time on paperwork). Regulatory overload in health care causes various forms of failure—unnecessary cost, grotesque inefficiency, corrosion of professional judgment, and a palpable degradation of professional spirit.   

Then pile on top of this the ability of any sick person to bring a lawsuit against a doctor in almost any amount, without any reliable decision maker, and—voila—you have the world’s most expensive healthcare system, by almost a factor of two, and perhaps the most dispirited medical professionals in the developed world.  

The solution is not getting rid of regulatory oversight, but re-humanizing it. Box checking should be restricted to high-risk activities. Ideas for dealing with this or that disease should be placed in a reference manual as guides, not as a mandatory compliance regime. Accountability should be determined after the fact, by periodic reviews based on the judgment of professionals who understand the complexities, not by rigid metrics.   

The quest for regulatory perfection, like the quest for legal certainty, does not avoid failure, but causes failure.

Comment ›

More support builds for health courts

We're thrilled to see more and more enthusiasm behind the idea of specialized health courts, where patients and doctors can get more reliable medical justice without the fear, uncertainty, and frequent mistakes of the current malpractice system. This report from the Center for Health Affairs notes that, "By serving as a centralized, standardized repository for medical liability claims information, health courts would allow the root causes of medical errors to be studied." The report also observes the widespread bipartisan support for health courts, which have been endorsed by Barack Obama, Mitt Romney, and a plethora of bipartisan deficit reduction committees.

Common Good Chair Philip K. Howard recently joined the medical news organization Medscape for an interview on the benefits of health courts. Howard notes that the current system "is rife with error in both directions; sometimes it favors the doctors who did something wrong and often it favors an injured patient even when the doctor did nothing wrong, particularly in tragic cases." The prevalence of legal fear means that  "physicians and nurses are...trained not to speak up when they see something in their peripheral vision that they are not sure is right, because they might be taking legal responsibility."

Health courts would restore trust and reliability to our medical justice system. Read Common Good's proposal here.
Comment ›

Fixing Medical Justice

"Health care in America will never be fixed unless we as a nation address doctors' understandable distrust of medical justice." That's what Philip Howard said in a recent interview with the Hartford Business Journal, which you can read in full here. Howard spoke on the delays and inefficiencies imposed by our unreliable, adversarial medical justice system. For example: "On average, [medical malpractice] cases that go all the way to trial take somewhere between 39 and 44 months. By comparison...the median time from filing to trial for all types of civil lawsuits is less than two years."

Howard proposed that health courts, outlined by Common Good here, would "speed this process up."

By creating clear standards of care, health courts will allow judges to dispose of weak and invalid claims quickly after filing, while also disincentivizing doctors and insurers from defending cases in which they are unambiguously at fault. Furthermore, by ensuring that judges and not juries are deciding cases, and by ensuring that judges rely on the testimony of neutral court-appointed experts rather than litigants' hired guns, health courts will eliminate the need to even hire a lawyer for most plaintiffs, shaving considerable time and expense off of the current process.

Check out the full interview for more insights on medical justice reform.

Comment ›

Philip Howard speaks on encouraging good medicine

Last Thursday, Common Good Chair Philip K. Howard presented before the Florida State University College of Medicine’s Grand Rounds series. In his remarks—titled "Remaking the Social Contract with Healthcare Providers"—Howard examines the conditions under which doctors, nurses, and hospital administrators deliver care today, questioning whether they have the freedom to act on their best judgment and values to do what’s right.

Philip Howard"I think we’ve created a [healthcare] structure that demeans healthcare professionals at the same time that it encourages them to act selfishly," he argues. "I think we’ve smothered the conditions for human accomplishment under endless bureaucracy." Howard goes on to address four particular institutional flaws in healthcare that need to be corrected.

You can watch Howard’s full remarks here.

Comment ›

Malpractice lawsuits are expensive, protracted, and foment mistrust

A new report on medical malpractice suits by Medscape takes a closer look at doctors' experience of malpractice suits. Among the findings:

  • 39% of malpractice suits take more than 3 years to resolve.
  • 93% of doctors believe expressing sympathy for patients by saying "I'm sorry" would not have helped.
  • 29% of doctors report losing trust in patients after a malpractice suit.
  • 6% of doctors report leaving their practice altogether.


Our malpractice system creates unfortunate incentives--for mistrust between doctors and patients, defensive medicine, and expensive legal battles--that damage both doctors and patients. Common Good advocates health courts, a reform that would restore reliability and trust, save time and money, and promote fair outcomes. Read our proposal here.

Comment ›

Health Court Reform Proposal Gains Key Support

Common Good distributed the following press release earlier today:

New York, NY – May 1, 2013 – Momentum for the creation of specialized health courts continues to build, as the nation faces rising health care costs without addressing the avoidable waste caused by unreliable medical justice, which fuels billions of dollars in unnecessary “defensive medicine” annually. Two new proposals from widely respected groups add to the growing calls for health courts. These proposals come in the wake of the first U.S. presidential race in which both major-party candidates endorsed health courts.

  • The Brookings Institution issued on April 29th a report titled “Bending the Curve: Person-Centered Health Care Reform: A Framework for Improving Care and Slowing Health Care Cost Growth.” The authors of the report, which was funded by the Robert Wood Johnson Foundation and the Irene Diamond Fund, include some of the most distinguished names in health care and budget management from both major political parties; among them are two former Secretaries of Health and Human Services, two former Directors of the Office of Management and Budget, a former Senate Majority Leader and a former Chairman of the Council of Economic Advisors.

    In a section titled “Encourage States to Develop More Efficient Medical Liability Systems”, the report states: “Since most tort law and related regulations are under state jurisdiction, reforms to foster a more effective medical liability system will likely require state action. To encourage state liability reform, we recommend that the federal government provide states with technical assistance and grant funding to test innovative reform models, and to include such liability reforms in state-based reform initiatives. These state-level reforms should focus on well-supported models such as:

    • ‘Safe harbor’ or ‘rebuttable presumption’ laws that establish legal protections for providers who achieve high quality and safety performance using valid measures.
    • Reforms that modify the existing judicial process for resolving tort claims with lower-cost and more predictable alternatives. These include a ‘patient compensation system’ that enables most claims to be settled through a standardized administrative process with predictable awards based on the adverse outcome involved, and Health Courts in which independent experts with clinical expertise would adjudicate liability claims.”
  • A new deficit-reduction plan was proposed on April 19th by Erskine Bowles and Alan Simpson, who chaired the National Commission on Fiscal Responsibility and Reform and now chair the Moment of Truth Project. The plan – “A Bipartisan Path Forward to Securing America’s Future” – states, in a section titled “Enact Medicare Malpractice Reform ($20 billion through 2023)”, “The current medical malpractice system adds substantially to the cost of health care, including by increasing the cost of defensive medicine...,” and recommends implementing eight reforms, including “applying a health court model to malpractice claims in the Federal Claims Court.”

These calls for health courts are the latest in a series of bipartisan calls for their implementation. In last year’s presidential race, Republican candidate Mitt Romney advocated the creation of specialized health courts in an op-ed in USA Today. President Obama had previously endorsed the creation of special health courts in a letter to Congressional leaders released by The White House on March 2, 2010.

The National Commission on Fiscal Responsibility and Reform endorsed the creation of specialized health courts, and three other bipartisan commissions have endorsed health courts: the Committee for a Responsible Federal Budget (at the New America Foundation); the Debt Reduction Task Force of the Bipartisan Policy Center; and Esquire magazine’s Commission to Balance the Federal Budget.

The concept of health courts has been championed by Common Good – the nonpartisan government reform coalition – working in conjunction with experts at the Harvard School of Public Health. Under Common Good’s model, 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 areas of complexity 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’ comp, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health care justice – and for health courts in particular. A nationwide poll conducted in 2012 by Clarus Research Group revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. The health court concept has also been endorsed by virtually every legitimate health care constituency, including medical societies, patient safety organizations and consumer groups like AARP.

“Except for opposition from the trial lawyers who benefit from the current system of unreliable justice, health courts would be implemented and the public would avoid spending billions of dollars unnecessarily,” said Philip K. Howard, Founder and Chair of Common Good. “The only question now is: How much longer does the public want to pay for that unnecessary waste?”

Comment ›

 1 2 3 >  Last ›