Howard: Why we need health courts for medical cases

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U.S. health care costs keep rising, because Congress won't address the skewed incentives embedded 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 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 -- trial lawyers. America cannot avoid a fiscal crisis until it figures out how to overcome this and other special interests that have a stranglehold on government.

Physicians and nurses universally distrust the current medical-liability system, because it does not reliably distinguish good care from bad. This distrust causes doctors to practice defensive medicine, in which they order 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 current system lets lawyers argue almost anything 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 -- 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 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. Today, there are special courts for tax disputes, family law, workers' compensation, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health-care justice. A nationwide poll last April by Clarus Research Group revealed that 66 percent of voters support 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 such consumer groups as AARP.

Only the trial lawyers oppose health courts 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 sewn 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 unaffordable costs of health care until we provide a reliable system of health courts. Why are we waiting?

Philip Howard, a lawyer, is chairman of Common Good (www.commongood.org), a nonpartisan government-reform coalition.

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