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Commentary

Letter to the Editor: Juryless Health Courts Could Stabilize 'Crisis'
Phillip K. Howard, Wall Street Journal, 2-28-06

Philip Howard, founder and chair of the group Common Good, writes to the Wall Street Journal to underscore the hypocrisy of attorneys who reject medical malpractice reforms that would improve health care quality while also reducing frivolous lawsuits.

The American Bar Association may be in favor of broad opportunities in law schools ("Affirmative Blackmail," Rule of Law, by David E. Bernstein, Feb. 11), but it reliably opposes reforms when its own pocketbook may be affected, even in areas in crisis such as health care. Recently, over the objections of its own Health Law Committee, the ABA House of Delegates opposed pilot projects for special health courts.

According to studies by the Institute of Medicine and others, nearly universal distrust of American justice is causing American health care to suffer a kind of nervous breakdown. Doctors squander tens of billions of dollars in unnecessary "defensive medicine." Professional interaction is chilled by legal fears, leading to tragic errors. Getting rid of inept doctors is, literally, a trial -- they invariably hire a lawyer and threaten to sue.
To begin to restore order to health care, a broad coalition of patient advocates, consumer groups and providers has come together behind the idea of creating pilot projects for special health courts. These health courts, developed by a joint venture of Common Good and the Harvard School of Public Health, would have judges focused on health care, neutral experts, incentives for prompt compensation, and written opinions to offer guidance on good practices. As with other administrative courts, health courts would have no juries. America has a long tradition of specialized courts for areas needing special expertise, including admiralty courts, bankruptcy courts and workers compensation systems. A bipartisan bill is pending in the Senate.

Trial lawyers usually pretend to represent consumers. But large consumer groups such as AARP and leading patient advocates are supporting health court pilot projects. Maybe the lawyers are just representing themselves. More money in the current malpractice system goes to lawyers than to injured patients.

Howard’s point is well taken, since one reason healthcare providers resist disclosing more information about medical errors and the quality of care is the fear of crippling lawsuits. Establishing reliable, neutral medical courts to adjudicate malpractice claims would go a long way towards the healthcare revolution America needs.



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