Health care in America is suffering a total nervous breakdown, but it isn’t just because doctors are striking and maternity wards are closing. Health-care premiums are rising at unsustainable rates. Some economists estimate that unnecessary tests and procedures, ordered by doctors to build a record just in case there is a lawsuit, cost more than $100 billion a year–enough to provide health insurance for the 40 million Americans who have no coverage. Modern medical technology is bringing us miracle cures, yet the absence of backup systems to catch human errors is causing thousands of deaths each year. In our culture of legal fear, the candor vital to improving care is also a casualty. Because doctors don’t feel safe talking about mistakes, they are unable to learn from them–or even offer an honest apology. With all the talent and resources devoted to health care–almost 15% of the U.S. economy–why can’t somebody just use common sense and fix things? The villain, I believe, is our legal system, which has become a free-for-all, lacking the reliability and consistency that are essential to everyone, especially doctors and patients. Most victims of error get nothing, while others win lottery-like jury awards even when the doctor did nothing wrong. Because of the resulting fear and distrust, doctors and other health-care providers no longer feel comfortable making sensible judgments. Yet reform is going nowhere. Both sides in the debate, horns locked, have succeeded mainly in confusing the issues. Trial lawyers talk a lot about the “right to sue” when something goes wrong. But what about the right of doctors to a system of justice that reliably distinguishes between right and wrong? Meanwhile, the tort reform pushed by doctors is like a bandage on a mortal wound. Placing limits on discretionary “noneconomic” damages may stem today’s bleeding and is certainly one element of controlling costs–$1 million to a plaintiff is $1 million less to take care of the rest of us. But merely putting caps on pain-and-suffering damages will not restore reliability or trust. Recently 70 prominent figures in the field of health care came together to call on Congress to create an entirely new system of medical justice. Because neither lay juries nor most judges have the technical knowledge to weigh complex medical evidence, some of these experts believe the most effective solution is to create special medical courts–just as we have separate courts for taxes, patents, workers’ compensation and vaccine injuries. Staffed with expert judges–and probably without juries–these tribunals could effectively screen claims, make rulings and award reasonable compensation for actual economic losses, plus pain-and-suffering damages based on a standard schedule: a certain amount for paralysis, for losing a limb and so on. That way we can decide how much money we want to go to victims and how much is available for future health care. Creating a special medical court is an ambitious undertaking that will be opposed by trial lawyers at every step. But proposals to launch pilot projects at the state level are being drafted in the Senate. We don’t really have a choice. American health care is out of control.
