Farewell, 12 good men and trueBMJ 2010; 340 doi: https://doi.org/10.1136/bmj.c1881 (Published 16 April 2010) Cite this as: BMJ 2010;340:c1881
Last month Barack Obama earmarked $50m (£33m; €37m) for pilot projects that could sweep away the jury system for dealing with medical injury litigation in parts of the US, replacing them with full time judges dedicated solely to healthcare cases.1
In a letter to Congressional leaders after the televised bipartisan summit on healthcare reform on 25 February,2 President Obama referred to the special health courts—a concept developed by Harvard School of Public Health and the legal reform think tank Common Good (http://commongood.org).
The president’s funding pledge would allow individual states to pilot alternatives to resolving medical malpractice disputes, including health courts, which would function as administrative tribunals that use specially trained judges and neutral expert witnesses instead of juries.
For New York lawyer and legal activist Philip K Howard, the president’s announcement was a breakthrough. Mr Howard was described recently by CNN correspondents John D Sutter and Richard Galant as an “anti-lawyer lawyer” who crusades “against the excesses of his own profession.” In 2002 he founded Common Good, a non-partisan coalition “dedicated to restoring common sense to America.”
Mr Howard explores the commonsense theme in his 2009 book Life without Lawyers. He did so also in February this year, when he received a standing ovation at the TED (Technology, Entertainment, Design) conference in California after outlining a four point plan to fix his country’s legal system.3 The TED talk was an impassioned plea for the law to be rehumanised and simplified—for to it be judged by its effect on society rather than on individual disputes.
In it, Mr Howard mentioned a paediatrician friend in North Carolina who told him: “I don’t deal with patients in the same way anymore. You wouldn’t want to say something off the cuff that might be used against you.”
The drive to eradicate the “bad values” of the 1960s—racism, sex discrimination, pollution—has delivered a legal quicksand, paralysing a society which for 200 years had relied on a written constitution of just 16 pages, he concluded.
One consequence of this is that medical malpractice litigation is big business in America. Mr Howard estimates it swallows up $28bn a year in direct costs alone and has led to a poisoning of the culture so that all patients are seen as potential plaintiffs and it is no longer fine to be a professional.
Unlike in the UK, there is no schedule that limits the amount of an award for specific damages (£3000 for the loss of a finger, for example). The UK abolished trial by jury for most civil cases in 1927.
Special health courts, Mr Howard argues, would gain the trust of doctors because they would deliver swifter and more consistent judgments and award lower settlements as they do in Sweden and New Zealand. “In New Zealand and Sweden the system assumes that even the best doctors make mistakes and provides compensation,” he says.
“It’s natural that the medical profession doesn’t trust the current system in the US. It’s not that juries are generally unwise, but they do tend to err towards compensation in tragic situations, with the assurance that the insurance companies will pick up the tab.
“Lawyers go to the jury and say: ‘What would you take—$20m, $30m?’ as if that would bring someone back from the dead. The money that could be used to take care of people goes to make a family rich, because of a tragedy. Our idea is to create a panel of expert witnesses in advance that is respected by its peers.”
Mr Howard illustrates his point by citing the legal career of former senator John Edwards. In 1985 Mr Edwards won a $6.5m settlement for a child with cerebral palsy because a doctor did not perform an immediate caesarean delivery when a fetal monitor showed she was in distress.
The presiding judge later upheld the verdict but halved the settlement. It was increased to $4.25m on appeal.
Mr Edwards later became known as North Carolina’s most successful plaintiffs’ attorney, filing 20 lawsuits and winning settlements totalling more than £60m.
Another option being floated by legal reformers is the idea of a federal “safe harbour.” This would retain the current adjudication process but protect doctors from liability if they could prove they had adhered to evidence based practices.4
Mr Howard does not think this solution is workable. “It sounds find in theory but every patient involves a different set of facts. It’s hard to find a choice in life that doesn’t involve the application of human judgment. All you’d need is a lawyer with an IQ above 80 who can plead.”
President Obama’s letter gives the green light to individual states to pilot alternatives to resolving medical malpractice disputes. What interest have they shown to date in trialling special health courts, and how will they be assessed?
Mr Howard says New York Presbyterian Hospital and Johns Hopkins Hospital in Baltimore have shown interest in a pursuing a pilot project, although no launch date has yet been identified.
The expectation is that a government agency, most likely the state health department, will oversee any pilot.
He adds: “There are two goals. The first is to show whether the system can work as intended. The second is whether you can restore reliability. Special health courts have the goal of reliability. And can you rebuild the culture of healthcare delivery to be less defensive?”
Defensive medicine can be lucrative for doctors. According to Mr Howard, reliable estimates put earnings at between $60bn and $200bn a year, enough to provide health care for all the people in America that don’t have access to it. So will doctors participate in a pilot scheme?
Mr Howard expects opposition from both doctors and lawyers, but he argues: “Nobody likes to go through life with a little lawyer on their shoulder. Most doctors want to get rid of the fear and the distrust.
“However, when you start putting real responsibility back on physicians to be prudent in their use of healthcare resources, they will absolutely be resistant. The whole system is designed to be what you can be reimbursed for.”
Like millions of Americans, Mr Howard has personal experience of this. “A few months ago I was at work and found my heart was racing. I’m 60. I went to the doctor. He said you have atrial fibrillation and asked what I’d done the night before.
“I told him I’d watched my daughter singing in a nightclub, and I’d had to watch 20 other singers before she came on.
“I was told I had ‘holiday heart,’ after drinking too much. But to be on the safe side he made me an appointment with a cardiologist using lots of fancy equipment. Then I had a stress test.
“$8000 later, with my heart rate back to normal, I knew what I knew at the beginning. I had drunk too much.”
Another question is whether US citizens suing or being sued in the federal courts will willingly waive their constitutional right to a jury trial. Precedents do exist, according to a 2008 article on special health courts for medical injury.5
It highlights numerous examples (including workplace injury claims) where areas of law previously heard by juries were replaced by administrative “jury-free” remedies.
The article concludes: “If Congress chooses to replace claims in front of juries with an administrative system, it may do so provided that the new system is fair, benefits all categories of interested parties, and involves important public policies.”
Desire for change
Mr Howard also points to “overwhelming” public support for change. An August 2009 poll by Clarus Research Group showed 83% of people believed the medical malpractice system should be overhauled in the US, with 67% supporting special health courts without juries.6
For Mr Howard, the ultimate goal is to create conditions under which medical professionals can do the best possible job. “That requires a legal structure which they trust.
“Tort reform in the US misses the point. It doesn’t make the ultimate result trustworthy. Trust is essential. The system just needs to be fixed.”
Special health courts at a glance
Full time judges dedicated to healthcare cases appointed through a non-partisan screening commission
Judges to select neutral experts from a panel in each area of medicine, replacing the “hired gun” experts that Common Good says confuse and prolong disputes today
Patients reimbursed for all medical costs and lost income, and a fixed fee that would be predetermined according to a schedule for specific types of injuries
American Medical Association’s view on health courts
In June 2007 the AMA adopted a policy that set principles for health courts. They are designed to serve as guidelines for state medical associations, local governments, insurers, and hospitals. The principles cover structure, selection, and training of judges and experts, damages and medical error reporting.
AMA board William A Hazel described the courts as “a promising reform that merits more investigation,” an alternative to California’s 1975 Medical Injury Compensation Reform Act, which includes a $250 000 cap on non-economic damages.
Cite this as: BMJ 2010;340:c1881
Competing interests: The author has completed the Unified Competing Interest form at www.icmje.org/coi_disclosure.pdf (available on request from the corresponding author) and declare: (1) No financial support for the submitted work from anyone other than their employer; (2) No financial relationships with commercial entities that might have an interest in the submitted work; (3) No spouses, partners, or children with relationships with commercial entities that might have an interest in the submitted work; (4) No non-financial interests that may be relevant to the submitted work.