Next Steps for Malpractice Reform

justice.JPGPresident Obama took an important step away from special interest politics when he committed to changing justice to solve the problem of defensive medicine in his address to Congress.  "I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.  I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas.  I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today."

The wires were abuzz this morning over what he really had in mind.  The trial lawyers will try to limit the damage with some sort of program that doesn't limit their ability to make emotional arguments to the jury.  But restoring trust in justice--the only way to eliminate defensive medicine--requires consistency and reliability.  That means standards of care need to be decided as a matter of law, in written rulings that all can see, by a court that knows what it's talking about. 

Because modern medicine is so complex, reliability almost certainly requires some kind of special court.  This country has a long history of such courts, such as bankruptcy courts, and it's hard to imagine an area of society in greater need of special judicial expertise than health-care.  That's why a broad coalition has come out for pilot projects--including AARP, the AMA, the American College of Obstetricians and Gynecologists, the Joint Commission on the Accreditation of Health-care Organizations, and many others.

That's what the American people want as well.  Today, Common Good and the Committee for Economic Development released a survey that showed an astonishingly high 83 percent of voters want Congress to address reform of the medical malpractice system as part of any health-care reform plan.  Moreover, even though the survey found that most Americans generally favor jury trials, for health-care disputes they overwhelmingly support special health courts--an extraordinary 67 percent support a new court system for health-care.

In a recent New York Times op-ed, Senator Bill Bradley called on Congress to make a basic trade--universal care for Democrats in exchange for reliable justice in the form of special health courts.  This sensible approach now looks possible, if only congressional leadership can pry its hands loose from the spigot of trial lawyers.

Photo Credit: Wikimedia Commons

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Philip K. Howard is a lawyer and author, and the chair of Common Good. He most recent book is The Rule of Nobody.

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