The Best Course of Treatment Philip K. Howard
The New York Times, July 21, 2003 Click here to read a letter to the New York Times by the co-founders of Consumers
Advancing Patient Safety showing their support for a reliable system of medical
justice.
Lose-lose is perhaps the best way of describing the sorry state of justice in
American health care. Doctors are going on strike and even quitting because of
ruinous increases in liability premiums. Patients aren't doing so well, either:
thousands die annually because of simple slip-ups, and no one seems to be able
to revoke the licenses of inept physicians.
Congress failed in its recent attempt at reform, which would have capped jury
awards for pain and suffering at $250,000. In truth, the bill offered only limited
relief to beleaguered doctors, and was easy to attack as anticonsumer. Why protect
doctors at the expense of victims of malpractice?
The demise of the bill capping damages is not necessarily a setback for the cause
of legal reform. Instead, it is an opportunity to break free from the partisan
stalemate and address the underlying flaws of a legal system that is out of control.
Doctors and patients aren't natural enemies. They've been driven apart by an
unreliable system of justice that tolerates both abusive claims and bad care,
breeding distrust on both sides. Studies about jury awards in health care confirm
what every doctor fears -- and every victim should fear: justice is random. Most
doctors who make mistakes don't get sued. But most lawsuits are against doctors
who did nothing wrong; the cases involve human tragedy but not medical negligence.
The common ground here is the need for reliable justice. For doctors, reliability
would offer protection against baseless claims. For patients, it would provide
victims with quicker compensation without the legal costs that consume almost
half the awards. A system of reliable justice could also remove from practice
incompetent doctors who often escape accountability now by threatening to sue
their hospital or state licensing board.
Creating a reliable system of medical justice, however, requires changing one
aspect of the system that is so ingrained it is hardly even part of the debate:
the jury. Expert judges, not juries, must decide what is a valid claim.
Even modest legislative reform is routinely resisted as trespassing on the hallowed
right to take every issue to a jury. But this right is generally misunderstood.
In criminal prosecutions, juries play a critical role as our protection against
abuses of government power. Juries are our defense. But in a civil case, where
citizens can use the justice system as an offensive weapon, the most important
social value is predictability.
Law is the foundation of freedom in part because it provides guideposts of right
and wrong. But those legal guideposts don't exist unless judges make rulings on
who can sue for what. Juries can't make consistent rulings of what is reasonable
care and what is not. Juries have no authority to make rulings at all. Every case
is a blank slate. It's yea or nay, and on to the next jury.
The Constitution's right to a jury trial does not require judges to abjure their
traditional role of defining the boundaries of reasonable dispute. The role of
juries in civil cases is to decide disputed facts, like whether someone is telling
the truth. It is not to declare standards of care that affect society as a whole.
That's why the Seventh Amendment qualifies the jury right as applying to "suits
at common law" and ends by saying that "no fact tried by jury shall be otherwise
re-examined . . . than according to the rules of the common law." Judges declare
the standards of law that affect all of society; juries decide disputed facts
in a particular case.
Today, however, juries are being asked to decide not only disputed facts but
standards of medical care. How does a jury know how to do that? More important,
how does a doctor know what standards to abide by? Every time a sick person gets
sicker, it's easy to come up with a theory of what a doctor might have done differently.
Chemotherapy didn't work, but maybe radiation would have.
Since the earliest days of the common law, there has always been a tension between
what's a legal standard and what's a disputed fact. Until recent decades, however,
this distinction didn't matter much to society. Social mores kept people from
suing except in egregious cases. No longer. Now lawsuits are limited only by the
imaginations of self-appointed victims and their lawyers. Drawing the line can
be difficult for a judge, but not drawing the line transforms justice into a free-for-all.
Unreliable justice harms patients more than it does doctors. Pervasive distrust
is causing a meltdown in American health care. Quality suffers as fear of lawsuits
chills the professional interaction necessary for informed and humane care. Costs
spiral out of control in part because doctors squander resources with unnecessary
tests in order to build a record just in case they get sued.
A reliable system of medical justice could take many forms, but because the critical
issue in virtually all cases is whether the doctor complied with appropriate standards
of care, the key element must be expert judges ruling on standards of care. Specialized
tribunals are common, in areas ranging from taxes to vaccine liability. A bill
to finance pilot projects for special medical courts is scheduled to be introduced
in the Senate later this week.
Defenders of the current system take pride in the fact that each case goes to
the vote of the people. But that's not the rule of law; law that changes from
case to case is the opposite of law. Shifting decisions about standards of care
to judges from juries seems radical, but doing so is essential to restore a critical
precept of American justice: that like cases be decided alike.
The victim of unreliable justice is society as a whole, not just doctors. That's
why reform must focus not only on protecting one group with caps on damages, but
also on achieving a reliable foundation of law for all.
Click here to see the op-ed as it appeared in The New York Times. | 
