August 2002 • Volume 8 • Number 8 |
Forget about tort reform. The only way to restore health to health care is to establish an entirely new system of medical justice, according to attorney Philip Howard. Author of The Death of Common Sense and The Collapse of the Common Good, Howard is chair of a new bipartisan coalition called Common Good -- and he'll keynote the 2002 AAFP Scientific Assembly in San Diego this fall (see related story).
Howard spoke June 17 to physicians gathered for the AMA House of Delegates annual meeting, during an educational session on the medical liability crisis. When he finished, he got something lawyers rarely get from doctors: a standing ovation.
Then later in the meeting, the AMA house voted to move liability reform to the top of the deck as AMA's priority number one.
Common Good is dedicated to overhauling America's "lawsuit culture." The coalition's board is almost shockingly diverse: George McGovern and Newt Gingrich, Alan Simpson and Paul Simon, plus leaders in health care, education, law, business, and public policy.
"Justice has become a kind of sporting contest, played at the intersection of personal tragedy and greed," Howard declared. Most people -- even reformers -- have tended to assume that the system of justice is immutable, like the Ten Commandments. "Prevailing orthodoxy is that patients, and indeed all Americans, have a virtually unlimited 'right' to sue," he said.
Accepting that frame of reference has determined the outcome, Howard said. "No long-term cure is in sight because we haven't let ourselves question the basic assumptions of who decides who can sue."
The result? Legal fear ripples throughout society, affecting not just physicians, but also teachers, ministers, Little League coaches -- everyone.
A PERFECT DISTRUST
Physicians' distrust of justice is perfect, Howard said. Common Good recently commissioned Louis Harris & Associates of New York City to do a nationwide survey of physicians and others in health care, and the chairman of Harris had never seen numbers so high, Howard said. "Ninety-six percent of physicians believe malpractice claims are brought because of adverse results, not medical errors. And when a claim is made, 83 percent said they did not generally trust the system of justice to achieve reasonable results."
The American patient is the biggest loser because physicians no longer feel free to follow their best judgments, Howard said. In the survey, a high percentage of physicians admitted to ordering unnecessary tests, prescribing unnecessary medication -- even altering humane choices at the end of life -- because of legal fear.
"Extrapolating a 1996 study of defensive medicine, the cost of defensive medicine is probably well over $100 billion a year," Howard said. "And this is a society where over 40 million Americans are uninsured. All that money could be spent to take care of people who are uninsured or who are really sick."
In addition, the current system fails to hold bad doctors accountable because "they invoke their so-called rights," he said. "The standard compromise, I am told, is to let the incompetent doctor leave quietly. There is a scandal in the making, just like the Catholic priests, as bad doctors are shown the side door and are allowed to go to the next hospital and practice on unsuspecting patients."
NO RIGHT TO SUE?
The Common Good coalition holds that there is no right to sue for whatever someone wants. "The rights our founders gave us were rights against state power," Howard said, but a lawsuit is the use of state power by one private citizen against another. "Any angry person can invoke state power against another citizen, and no one on behalf of society is making rulings of what's reasonable and what's not," he said.
Why? Back in the 1960s, judges awoke to abuses of authority and abandoned their responsibility to act as gatekeepers of who can sue for what, Howard said. "The role of law is not only to condemn what's unreasonable, but also to protect what's reasonable. We've forgotten the second half."
BATH WATER AND BABY
Common Good advocates an entirely new medical justice system, with special courts, perhaps like the patent courts, presided over by judges who have expertise in the field -- courts that patients and physicians would consider reliable. Getting there will require a revolution of sorts to make the public understand exactly what's happened, Howard said.
"To succeed in eliminating random jackpot justice, we must all get together and demand it," he said. "I hope we can work together to achieve it."
FP Report is published by the
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Copyright © 2002 by
American Academy of Family Physicians.