Posted 2/17/13 by Common Good
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?