How to Build a Trojan Horse

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The Senate health care bill does nothing to address the unreliable malpractice system.  Actually, it's designed to prevent fixing the malpractice system.  How the bill does this is painfully apparent to me--because I put together the first draft of a malpractice amendment at the request of a Democratic policy expert who deals with members of Congress on these issues.  Here's how the reform proposal got transformed into a bulwark for trial lawyers to bar possible reform.  

--Ignore defensive medicine.  The bill contains vague language about "mak[ing] the medical liability system more reliable," but, in listing its goals, says nothing about stemming the waste of defensive medicine.  Indeed, the phrase "defensive medicine" never appears in the bill.

--Make any pilot toothless.  The bill supposedly encourages pilot programs to improve reliability by "increasing the availability of prompt and fair resolution of disputes."  Indeed, only when justice is reliable will health care providers focus on delivering the best care rather than making choices defensively.  But the bill then removes the potential benefits of reliability by providing that any patient can "opt out" of any pilot project "at any time."  Lest anyone miss the point, the bill explicitly preserves every claimant's ability to take the case to a jury trial, even after participating in the pilot.  Instead of providing a reliable new system, the bill essentially gives claimants a choice of "heads I win, tails you lose."   

--Remove any incentives for reform.  The cost of unreliable justice is so great--resulting, according to some estimates, in $200 billion in unnecessary defensive medicine annually--that most serious proposals for overhaul (including the bipartisan proposal by Senators Wyden and Bennett) have provided incentive payments for states that succeed in stemming the waste.  The Senate bill omits any such incentives.  The preamble of the Senate proposal makes it appear that the purpose is reform, but then, like a Trojan horse, it kills any possibility of achieving that goal.  The cynicism here is breathtaking. 

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Philip K. Howard is a lawyer, author and chair of Common Good. He is the author, most recently, of Life Without Lawyers: Restoring Responsibility in America, and wrote the introduction to Al Gore's Common Sense Government. More

Philip K. Howard is the author of Life Without Lawyers(Norton 2009), as well as the best-seller The Death of Common Sense(Random House, 1995) and The Collapse of the Common Good(Ballantine, 2002), and he is a periodic contributor to the op-ed pages of The New York Times, The Wall Street Journal, and The Washington Post. He advises leaders of both parties on legal and regulatory reform issues, and wrote the introduction to Vice President Al Gore's book Common Sense Government. A practicing lawyer, Howard is a partner in the law firm Covington & Burling LLP. In 2002, Howard founded Common Good (www.commongood.org), organized to restore common sense to American public life. The Advisory Board of Common Good is composed of leaders from a broad cross-section of American political thought including, among others, former Senators Howard Baker, Bill Bradley, George McGovern, and Alan Simpson. Howard is a civic leader in New York and is Chair-Emeritus of the Municipal Art Society, a leading civic group that spearheaded initiatives to preserve Grand Central Terminal.
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