Health Reform Requires Lawsuit Reform
But tort lawyers are the one special interest Democrats won't offend.
Containing health-care costs is impossible under the current legal structure. That fact has to be addressed if President Barack Obama is to create an affordable health-care system that is accessible to everyone.
Every incentive in the system now is to do more -- that's how doctors get paid and that's how doctors get protected from lawsuits. Billions of dollars are wasted in "defensive medicine." Bureaucracy built up over decades diverts resources from patient care to mindless compliance. Forms are everywhere.
The only path to affordable health care is a basic overhaul to realign incentives. The new ideas are out there -- for example, creating a reimbursement model that rewards effective care, and restoring trust in the reliability of justice by creating special health courts.
Overhaul, however, requires letting go of the old ways. Congress is perfectly willing to come up with new programs and introduce new taxes to pay for ever-rising health-care costs. But Congress seems unwilling to make hard choices.
Like a crash in slow motion, you can see Congress tumbling down toward the lowest common denominator -- a reform package that will do little to contain costs, but will offend the least number of special interests.
Studies have repeatedly demonstrated that the current ad hoc system of justice, with verdicts that vary widely from one jury to the next, has spawned a culture of legal fear and self protection. Studies also show that the system fails injured patients -- a claim takes an average of five years to resolve and nearly 60 cents out of every dollar spent in the malpractice system ends up going to lawyers or administrative costs.
That's why most of the important health-care constituencies, from the American Medical Association to AARP, favor creating pilot projects for special health courts. Mr. Obama has recently talked about the need "to explore a range of ideas about how to . . . scale back the excessive defensive medicine."
But one interest group hates the idea. You guessed which one. Sen. Mike Enzi (R., Wy.) discovered just how powerful the trial lawyers are when he proposed creating health court pilot projects. His proposal was only to permit experiments, not broad-scale tort reform, and it had been developed with Sen. Max Baucus (D., Mt.), chairman of the Finance Committee. But when Mr. Enzi offered this modest proposal, other members of the Senate Committee on Health, Education, Labor and Pensions killed the idea, declaring that the Constitution requires juries to be the ultimate decision maker in civil lawsuits.
That's not true. Special courts without juries are common in America and include courts for bankruptcy, tax disputes, workers compensation and more. America has a long history of using expert courts when there is a need for expertise and consistency. It's hard to imagine any area that needs consistent justice more than health care.
The senators weren't willing to discuss the merits of an expert court. The jury, as Sen. Sheldon Whitehouse (D., R.I.) put it, is "our protection against tyranny of the majority." But that's not true either, at least not for civil cases. In private lawsuits, juries have the limited role of deciding disputed issues of fact. "What is the object of the jury trial?," asked John Marshall in the debates over ratifying the Constitution. Marshall, the future chief justice of the U.S. Supreme Court, then answered his own question: "To inform the court of the facts." It is the judge who is tasked with drawing legal boundaries that determine who can sue for what. Those boundaries are precisely what's missing in deciding whether doctors have abided by accepted standards of care.
At the hearing, Mr. Whitehouse warned that "we take enormous risks as a country if we interfere with the institution of trial by jury." Actually, the enormous damage of unreliable justice is visible all around American society -- in playgrounds stripped of athletic equipment (contributing to the epidemic of obesity), in schools where disorder is the norm because of loss of teacher authority, and in a health-care system that squanders resources practicing unnecessary defensive medicine.
Fear is the tool not of leadership but of the status quo. It could hardly be easier to scare people into keeping programs and institutions the way they are. But that only delays the day of reckoning. Congress is mortgaging our children's future. Cost containment must be a goal. Protecting trial lawyers is not the solution.
Opinion: The Wall Street Journal
By: Philip K. Howard
Mr. Howard, a lawyer and author, is chairman of Common Good (www.commongood.org).
Posted by Scott W. Yates, MD, MBA, MS, FACP
