Sharply increasing legal liability has caused doctors to quit, or retire early, or no longer deliver babies. This harm to doctors obviously affects patients as well. But it’s only the tip of the iceberg.
Billions are squandered in “defensive medicine” — unnecessary tests and procedures ordered because doctors no longer trust American justice. This waste raises the cost of healthcare to everyone. Quality has also suffered. Countless patients are hurt or die because of simple mistakes, such as misreading of prescriptions, because in a culture of legal fear doctors and nurses won’t speak up, or admit uncertainty.
The distrust infecting American healthcare is the natural result of a system of justice that tolerates, indeed encourages, wildly inconsistent verdicts. Every jury is different. No one on behalf of society has the authority to make binding rulings on what is good care and what is not. The unreliable legal process is also staggeringly inefficient, with lawyers’ fees consuming over 60 percent of the total liability costs.
Curing healthcare requires a legal system that is reliable. A broad coalition of patient advocates and providers is calling for a new health court, reliable for doctors and patients alike. Patients need justice that reliably holds doctors accountable when there’s a mistake. Doctors need a system reliable enough to protect them when they are unfairly charged.
Creating a new health court may seem radical, but specialized courts are common in such areas as taxes, workers compensation, and vaccine liability. We don’t really have a choice: distrust of justice is like a cancer in American healthcare, and cannot be cured until we restore reliability to healthcare justice.
Philip K. Howard, an attorney, is Chair of Common Good, a bipartisan legal reform coalition (www.cgood.org), and the author of "The Death of Common Sense" and "The Collapse of the Common Good."