Health Courts - An Exaggerated Solution to a Fabricated Problem
Many have come before Mr. Howard with various proposals that are allegedly designed to improve health care and reduce health care costs. Invariably, these advocates assume that trial lawyers (and, to be more precise, trial lawyers representing plaintiffs) are to blame for the problems with the current system. I admire Mr. Howard's intentions. Good intentions, however, are not sufficient to justify reforms premised on inherently flawed assumptions.
Mr. Howard proposes that health courts be created to adjudicate medical malpractice claims. Here are his justifications:
- Under the present system, trial lawyers increase the cost of health care.
- The current system encourages health care providers to practice unnecessary defensive medicine.
- Under the present system, lawyers recover large verdicts in bogus cases, using bogus experts, by appealing to the emotions of jurors.
- Under the current system, it takes too long for injured patients to obtain a recovery.
What is his solution? He proposes that special courts be created to adjudicate medical malpractice claims. This means that jurors will no longer adjudicate the claims of their peers. This also means that judges, not physicians, will be asked to define what good medical care is and what bad medical care is. Yes, without any medical training, lawyers who become judges will get to decide what health care providers in dozens of medical specialties should do in an infinite number of factual permutations.
Articulating the reality in which change is proposed is essential to any meaningful dialogue. So, let me propose an alternative reality than the one described by Mr. Howard: 
- In 1999, the Institute of Medicine (IOM) estimated that as many as 98,000 people die every year at a cost of $29 billion. 
- Medical malpractice has become one of the top 10 leading causes of death in the United States. 
- If the Centers for Disease Control were to consider preventable medical errors a disease, medical malpractice would be the sixth leading cause of death in America. 
- In 2003, the Congressional Budget Office (CBO) found that there were 181,000 severe injuries attributable to medical negligence. 
- The Institute for Healthcare Improvement estimates that there are 15 million incidents of medical malpractice every year. 
- Medicare patients who experienced a patient safety incident have a one-in-five chance of dying as a result. 
- According to a study by the Harvard School of Medicine, about 18% of patients in hospitals are injured during the course of their care, and many of those injuries are life-threatening, and even fatal. 
- According to the Office of the Inspector General of the U.S. Department of Health and Human Services, one in seven Medicare patients are injured during hospital stays. Moreover, adverse events during the course of care contribute to the deaths of 180,000 patients every year. 
- The Joint Commission Center on Transforming Healthcare estimates that as many as 40 wrong site, wrong side and wrong patient procedures happen every week in the U.S. 
- The total national costs in terms of lost income, lost household production, and health care from medical errors are estimated to be between $17 billion and $29 billion per year. 
- Although, one in three Americans claim that they or a family member were subject to medical malpractice, Americans are generally unaware of how frequently medical errors occur. In a recent study, about half of the participants believed that less than 5,000 patients died a year because of medical negligence. That is nearly twenty times less than what the Institute of Medicine estimates.
- People have been led to believe that there is an epidemic of medical malpractice cases. In reality, there is an epidemic of medical malpractice. 
The reality, Mr. Howard, is that medical malpractice lawsuits are filed because medical errors occur, not because trial lawyers fabricate frivolous cases with the help of what you call "bogus experts." Medical malpractice litigation reflects a real medical error epidemic in a healthcare system that is quickly becoming one of the biggest profit-driven industrial complexes in modern history.
We, trial lawyers if you will, are nothing more than a reaction to a certain reality. We do what we were designed to do in society-serve as a corrective force. The insinuation that lawyers fabricate "bogus" cases is simply divorced from reality.
The argument that medical malpractice lawyers contribute to an increase in health care costs is attenuated at best as well. With respect to health care costs and medical malpractice litigation, let me suggest a more accurate reality:
- Economists generally agree that "[t]he direct costs of malpractice lawsuits-jury awards, settlements and the like-are such a minuscule part of health spending that they barely merit discussion." 
- Only 2-3% of medical malpractice cases lead to an actual lawsuit. 
- The cost of medical malpractice is estimated to be about 2.4% of total national health care expenses. 
- Since the 1990s, medical malpractice payouts have been steadily dropping. By 2011, they dropped to 3.18 billion nationwide.  This is only a small portion of the overall cost of medical errors.
- 36% of all payouts in medical malpractice cases in 2010 occurred in just three states (New York, Pennsylvania, and Florida).  This is hardly a national "problem."
- In 2011, only 9,497 medical malpractice claims were filed nationwide. On average, doctors win three out of four cases. 
The truth is that trial lawyers are hardly the problem. Impeding trial lawyers from recovering damages on behalf of injured patients is not going to make a meaningful difference in terms of reducing health care costs. In fact, the opposite effect is likely.
For example, when a child is injured at birth because of medical negligence, and recovery is denied or limited in the name of protecting doctors (by verdict caps, procedural hurdles, or judges who take the place of jurors), who bears the burden of the child's future medical care? Is it not the taxpayer, Mr. Howard? The average future care cost associated with a birth injury was about 2.5 million in 2008.  We should stop pretending that reducing the number of medical malpractice cases or jury awards is the solution to increasing health care costs.
What we have here is yet another classic case of the straw man fallacy-an exaggerated problem with an overbroad and quite draconian solution.
Let's not forget exactly what the proposal in question is-to prohibit patients from having their case heard by a jury of their peers. Why? Where is the evidence that jurors are prone to sympathize with plaintiffs? Where is the evidence that jurors can't do the right thing when presented with the evidence? Where is the evidence that judges, who are not physicians, can do a better job?
There simply is no such evidence and the evidence that exists indicates that our system is working just fine. According to a detailed study published in the Journal of Clinical Orthopaedics and Related Research , data shows that:
- There is little support for the public perception that jurors in medical malpractice cases are incompetent and irresponsible in awarding damages.
- Doctors win about three out of four cases that go to trial.
- Juries are generally skeptical about awarding large sums of money.
- Jury verdicts are roughly similar to assessments made by medical experts and judges.
- Damage awards tend to correlate positively with the severity of the injury.
- There are defensible reasons for large damage awards.
- The largest awards are typically settled for much less than the verdicts.
- Jurors actually decide about 7% of medical malpractice cases as it is. In most cases, both parties agree to settle. Both parties get to decide what the settlement amount should be. Most cases settle because liability is clear.
- Most insurance companies settle cases based on their own assessment of the medicine in the case, notwithstanding what a jury could award should the case go to trial.
- Punitive damages are almost never awarded in medical malpractice cases.
- Contrary to popular belief, doctors and insurance companies generally don't settle cases when they conclude that the standard of care was not breached.
- Also contrary to popular belief, jurors are generally unsympathetic towards plaintiffs in medical malpractice cases. Jurors tend to be much more concerned about protecting doctors.
- Jurors often penalize plaintiffs who are not credible, or who exaggerate their injury.
- Jurors tend to be actively involved in scrutinizing medical expert testimony during deliberations.
Mr. Howard, let's first make sure that there is a need for change before we go on dramatically altering our judicial system to fix a non-existent problem. Let's also make sure that the solution is capable of fixing the problem.
After all, change for the sake of change is pointless unless there is a hidden agenda.
1: “Philip K. Howard: Why America Needs Health Courts“, Providence Journal.
2: “Preventable Medical Errors - the sixth biggest killer in America“, America Association for Justice.
3: To Err Is Human: Building a Safer Health System, Institute of Medicine, 1999.
4: “The Statistics...A Shocking Reality“, The Moral Climate of Health Care.
5: Deaths/Mortality, 2005, National Center for Health Care Statistics at the Centers for Disease Control.
6: Key Issues, Congressional Budget Office, December 2008, 150-154.
7: Institute for Healthcare Improvement: Campaign - FAQs, Institute for Healthcare Improvement.
8: The Fifth Annual HealthGrades Patient Safety in American Hospitals Study, HealthGrades, April 2008.
9: Christopher P. Landrigan et al., Temporal Trends in Rates of Patent Harm Resulting from Medical Care, New England Journal of Medicine, November 25, 2010.
10: Daniel R. Levinson, Adverse Events in Hospitals: National Incidence Among Medicare Beneficiaries, Department of Health and Human Services Office of the Inspector General, November 2010.
11: Wrong Site Surgery Project, Joint Commission Center for Transforming Healthcare.
12: “The Statistics...A Shocking Reality“, The Moral Climate of Health Care.
13: Tom Baker, The Medical Malpractice Myth, 2005.
14: “Medical Malpractice Costs“, Washington Post.
15: “Medical Malpractice Costs“, Washington Post.
16: “How Much Does Medical Malpractice Cost the Nation? Billions, Say Researchers“, The Doctor Will See You Now.
17: “The True Cost of Healthcare“, Medical Malpractice: Myths and Realities.
18: “The True Cost of Healthcare“, Medical Malpractice: Myths and Realities.
19: “Juries and Medical Malpractice Claims: Empirical Facts versus Myths“, Clinical Orthopaedics and Related Research.
20: “Juries and Medical Malpractice Claims: Empirical Facts versus Myths“, Clinical Orthopaedics and Related Research.
21: “Juries and Medical Malpractice Claims: Empirical Facts versus Myths“, Clinical Orthopaedics and Related Research.