By PHILIP K. HOWARD
WASTE in the health care system costs America
upwards of $1 trillion per year. Much of this waste is generated or
justified by the fear of legal consequences that infects almost every
health care encounter. The good news is that it would be relatively
easy to create a new system of reliable justice, one that could support
broader reforms to contain costs.
The legal system
terrorizes doctors. Fear of possible claims leads medical professionals
to squander billions in unnecessary tests and procedures. “Defensive
medicine” is so prevalent that it has become part of standard protocol
— for example, mandatory pre-operative exams even where the patient
record is current, and even for minor procedures.
Like a
cancer, this legal anxiety corrodes relationships with patients.
Doctors and nurses don’t want to speak up for fear of assuming legal
liability, and this causes unnecessary errors. Under instructions from
lawyers, they don’t apologize or offer explanations when things go
wrong. They sometimes conceal errors in an effort to avoid a legal
ordeal. Even in ordinary daily encounters, an invisible wall separates
doctors from their patients. As one pediatrician told me, “You wouldn’t
want to say something off the cuff that might be used against you.”
As
the culture of health care disintegrates, costs rise further. In
hospitals, self-protective bureaucracy multiplies. Patient encounters
require witnesses, wasting professional time. Patients, sensing
distrust, demand second opinions even on minor ailments. There are
psychological costs as well: doctors no longer find professional
fulfillment and drop out in their prime. Forget productivity —
sometimes doctors avoid using e-mail so they don’t have to put things
in writing.
Restoring a foundation of trust requires a new
system of medical justice. Medical cases are now decided jury by jury,
without consistent application of medical standards. According to a
2006 study in the New England Journal of Medicine, around 25 percent of
cases where there was no identifiable error resulted in malpractice
payments. Nor is the system effective for injured patients — according
to the same study, 54 cents of every dollar paid in malpractice cases
goes to administrative expenses like lawyers, experts and courts.
America
needs special health courts aimed not at stopping lawsuits but at
delivering fair and reliable decisions. A special court would provide
expedited proceedings with knowledgeable staff that would work to
settle claims quickly. Trials would be conducted before a judge who is
advised by a neutral expert, with written rulings on standards of care.
With a special health court, damages would consist of all lost
income and medical costs, plus “pain and suffering” based on a set
schedule depending on the severity of the injury. All information about
each incident, including details learned in settlements, would be
compiled and disseminated so that doctors and hospitals could learn
from their errors. Proponents of special health courts have estimated
that the total cost of such a new liability system would be about the
same as the existing system — less than 2 percent of America’s total
health care costs. One benefit would be that the quicker, streamlined
system would compensate far more people, with drastically lower legal
costs. Most important, it would restore faith in the reliability of
medical justice.
A court that freed doctors from worries about
unnecessary and unreasonable malpractice claims would transform the
culture of health care. Doctors could finally emerge from their
defensive cocoons and start focusing on the health of the patient.
Hospitals would concentrate on productivity and safety. Doctors could
be more candid about decisions for terminally ill patients, and offer
more guidance about high-risk procedures.
This country has a
long tradition of courts and tribunals to deal with issues like
bankruptcy that require special expertise. Nowhere is that expertise,
along with the stability and trust it would bring, more needed than in
health care.
Several prominent hospitals, including New York
Presbyterian, have said they are interested in being part of a health
court pilot project. Some large consumer and patient safety groups
support the idea. The fastest way to do this would be for Congress to
authorize and finance pilot courts around the country. These ideas
already have some bipartisan support: Bills for alternative medical
justice systems have been introduced in Congress.
Cutting back on
the notorious inefficiency of American health care is essential to
achieve universal care, as well as make the American economy more
competitive. Part of the solution — overhauling the reimbursement model
so that doctors get paid only for what is needed — is unavoidably
complex. But restoring trust in law, the other essential reform, can be
accomplished with the creation of reliable courts.
Philip
K. Howard, a lawyer, is the chairman of Common Good, a legal reform
coalition, and the author of “Life Without Lawyers: Liberating
Americans From Too Much Law.”
