The Solution

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Establish Health Courts

Unreliable justice has a particularly pernicious affect in healthcare, where it chills communication between doctors and patients—lessening patient safety—and encourages the practice of defensive medicine, where doctors order tests and procedures to protect themselves from lawsuits. The cost of defensive medicine is estimated anywhere from $45 to over $200 billion dollars each year. Controlling healthcare costs is impossible without addressing the distrust that fuels this waste.

To restore a foundation of trust we need health courts, aimed not at stopping lawsuits but at making lawsuits reliable to protect whoever is right. In health courts, expert judges with special training would resolve healthcare disputes. They would issue written rulings providing guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. As with existing administrative courts in other areas of law—for tax disputes, workers’ compensation, and vaccine liability, among others—there would be no juries. Each ruling could be appealed to a new medical appeals court.

The transformative benefits of reliable medical justice will be far-reaching. Once trust is restored, doctors can emerge from their defensive cocoons, be more candid about decisions of care, and start focusing on what they think is right, not self-protection. And hospitals can acknowledge opportunities for improvement and institute systemic safety enhancements without fear of opening themselves to legal risk.