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CURRENT COMMENTARY |
Common Good, New York, New York
Address reprint requests to: Philip K. Howard, Founder and Chair, Common Good, 675 Third Avenue, 32nd Floor, New York, NY 10017.
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ABSTRACT |
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TOP
 ABSTRACT |
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For almost 15 years I have considered the relationship between legal structures and daily choices and the ability to run our common institutions. My conclusion is that there is a fatal flaw in our system of justice, which is an unintended side effect of reforms from the 1960s. To avoid holding you in suspense, the flaw is this: Justice is not supposed to be a neutral process, with standards decided jury by jury. Law that changes from case to case is not the rule of law, but the opposite. Law is supposed to be reliable. "The basic moral principle, acknowledged by every legal system that we know anything about," Yale law professor Eugene Rostow once observed, "is that similar cases should be decided alike." Instead of reliability, justice today is more like a free-for-all. Anyone can sue for almost anything. The results, studies show, are worse than random. Most patients injured by error get nothing; most do not even sue. Many doctors who did nothing wrong are held liable, particularly in tragic circumstances, such as a child born with cerebral palsy. The effects of unreliable justice are almost perfectly counterproductive. Doctors lose, patients lose, and the health care system spins out of control because no one is in control.
The good news here is that there is a clear, principled reason why this system fails physicians so badly. Clarity can have enormous power. The bad news is that changing the public perception of what justice is supposed to be will require a kind of revolution. To bring about such revolution, last year we organized a bipartisan coalition called Common Good,*dedicated to restoring the foundation of reliable law. Our board consists of some of the most prominent leaders in the United States. Cochaired by former Governor Tom Kean of New Jersey, it is probably the only board of which both George McGovern and Newt Gingrich are members. Other directors include Griffin Bell, Senator Alan Simpson, Senator Paul Simon, Dick Thornburgh, university presidents, and heads of think tanks on both sides of the aisle. We do not see ourselves as promoting merely tort reform, which implies putting caps on crazy verdicts, because the harm we see is not just the actual verdicts. They are only the tip of the iceberg. The far greater harm is the legal fear that now infects daily choices. This legal fear is literally tearing at the fabric of our culture. Before we focus on health care, it is important to understand that the flaws in justice affect all members of society because you are going to need their help.
One aspect of society affected by such flaws is the educational system. Visit a school. It is hard to find a teacher who has not been threatened with legal claims. In many big city schools, it is practically impossible to maintain order in the classroom. I recently saw a photograph of a teacher with her hands crossed in front of her with a small child leaning against her crying. The teacher obviously wanted to put her arms around the child, but most schools forbid touching because of the threat of a claim of unwanted sexual touching. Some schools now use videotape surveillance in classrooms (some doctors do, too). How does a principal run a school when practically any management decision can subject him or her to an adversarial proceeding with lawyers and cross-examination? Standard operating practice is to avoid any decision that someone might disagree with. A committee of superintendents from Pennsylvania discovered a couple of years ago that 13 teachers had been dismissed for incompetence in the State of Pennsylvania since 1957. In California, 44 of over 200,000 tenured teachers were dismissed for all causes during a 5-year period in the 1990s.
Even the simple pleasures of childhood are affected. Playgrounds have been transformed. Seesaws are disappearing, not because any regulator has determined that seesaws are unreasonably dangerous, but because the word got out that schools might get sued if one child gets off too soon and another comes crashing down. Some playground experts say playgrounds are so boring that children over the age of 4 will not go into them. Instead, older children make up dangerous games like crashing their bicycles into the equipment. At a recent conference with Secretary Tommy G. Thompson, a panel discussed the problem of child obesity and suggested that we should promote a culture of physical fitness in children. That is exactly what John F. Kennedy’s Council on Youth Fitness did in the early 1960s by funding jungle gyms and other exciting playground equipment. They have all been ripped out because of legal fear.
Archaeologists who will dig us up in a thousand years may not realize schools were out of control and seesaws were ripped out. However, what they will see in black and white are all the warning labels. They’ll give us a name. Instead of the Age of Reason, ours will be the Age Without Reason. Examples are such warnings as "Caution: Contents are Hot" on billions of coffee cups or, my favorite, "Remove Baby Before Folding Stroller."
Unreliable justice has had many effects on US health care:
What all these issues have in common is that US citizens no longer trust the system of justice. We have all been brought up to believe that the United States has the fairest system of justice in the world. We know it is fair because it is neutral. Anyone can bring a claim, go before a judge who is not allowed to make value judgments, and then have the case either proved or not in front of a jury. But there is a flaw in the premise: None of the choices we are talking about are matters of proof. They all require a value judgment. Are seesaws worth the risk or not? Do we want doctors to give aspirin for a headache or consume vast resources in computed tomography scans? These questions require value judgments. Of course juries are generally sensible, but if the judgments are made case by case, then no one ever knows what is right and what is wrong.
The core idea of law is what is missing. Oliver Wendell Holmes, Jr, famously defined law as "the prophecies of what courts will do." Today in the United States no one has any idea what a court will do. This means that we have lost the protection of law. The effects of powerlessness ripple through our daily choices, and it is as if we have built a huge monument to the unknown plaintiff, casting a shadow across all of us.
So what do we do about it?
This has been quite a year for the medical profession. Liability insurance premiums doubled and tripled for some obstetricians and are now over $2000 per birth in areas like southern Florida. The crisis was hardly ignored, and almost daily headlines reported on strikes by doctors in West Virginia and New Jersey, trauma centers closing down, and doctors abandoning certain states. The President and numerous governors took up the cause of physicians, and the proposed reform was to limit noneconomic damages to $250,000.
But reform may be stalled, notwithstanding the tireless efforts of leaders like The American College of Obstetricians and Gynecologists (ACOG) president Charles Hammond. The trial lawyers use the victims of gross error, like the woman who lost both breasts to surgery when she did not have cancer, to ask "Why are you trying to take away the rights of a patient who was grievously harmed by a doctor’s carelessness?" The lawyers run tasteless ads such as the one that shows a photo of a deformed child in a wheelchair with the headline "Another winner of the malpractice lottery." They cite facts, as Senator John Kerry recently did, that malpractice premiums constitute only six tenths of 1% of the total health care costs. Of course it is a much higher percentage of physician income. There’s an almost irresistible appeal to the opportunity to "get" whoever made a mistake. The threat of a lawsuit, lawyers argue, will make doctors be more careful. That is valid, of course, only if justice is reliable. After a year of acrimonious and loud debate, many in the public probably believe that the choice is between the rights of patients and the pocketbooks of doctors. That is a formula for stalemate.
Doctors and patients are not natural enemies. There is nothing antipatient about making justice reliable, including limiting noneconomic damages. It will reduce the cost of health care for everyone, as well as keep doctors on the job. Reform is mainly stalled for another reason. It has to do with an assumption about the goals of justice. As soon as the plaintiffs’ lawyers ask the question "Why should you limit a patient’s right to sue?" the debate is lost. Even tort reformers have gone along with the assumption that justice gives everyone the right to take any claim, even a spurious one, to a jury. That is the reason the proposed reforms try only to limit certain damages, not address the underlying unreliability. Although limiting pain-and-suffering damages is obviously useful, the reform, especially for obstetricians, is hardly complete. After all, a physician can still be liable for a lifetime of care for a baby when he or she did nothing wrong. When push comes to shove, the idea of limiting someone’s alleged rights will almost always be a loser.
But what about physicians’ rights to a system of justice that is reliable? I recently had breakfast with Bill Moyers, and we discussed the need for a basic shift in public attitudes about the goals of justice. I hate to break the news, but for any large reform, legislatures are a lagging indicator. They will not act until the public understands that they will never get top quality or affordable health care until we have a reliable justice system that honors the deliberate judgments needed to make the health care system work.
What is needed here is a campaign to the US public. For the last year we have been sponsoring forums to collect the best studies and ideas on the effects of law on health care. Recently 70 prominent leaders of health care (deans of major medical schools, leading patient safety experts, heads of major hospitals, Charles Hammond) issued a petition calling on Congress to create an entirely new system of medical justice. The first goal, the petition stated, "is to be reliable—reliable to protect patients against bad practices, reliable to protect the caregivers who act reasonably and reliable to interpret standards of care so that all of the participants know where they stand and where they must improve."
In a few weeks we will announce a second petition signed by dozens of university presidents, former senators and attorneys general, heads of think tanks, and chief executive officers of major companies. These petitions are only the beginning, a useful first step to lend credibility to this radical demand to create an entirely new system of medical justice.
Now we are ready for the real campaign. Like any, it requires thousands of people who care. For example, physicians can hang the petition in their offices and provide a mechanism for patients and friends to add their names to it. They can also continue to encourage patients to contact their congressmen. Like any campaign, this one requires funding for manpower and marketing. Many of us, including myself and ACOG leaders, are doing this without pay. However, we will never succeed without funding, and here as well, all physicians can help.
Ideas matter. Vocabulary is critical. For decades everyone has talked about justice as a matter of the "rights" of the victim, and justice has been played out at the intersection of personal tragedy and personal greed. The language of rights is so powerful that when anyone asserts his or her rights we shrink back in terror, like savages before a holy man. What we are saying, and what the US public must come to understand, is that this emperor has no clothes. The language of "rights" is just one-sided rhetoric—as my friend Professor Cass Sunstein said, "conclusions masquerading as reasons." The task of justice in a free and functioning society is to reliably balance the predicament of the individual with the interests of the common good. Whose rights do we recognize: those of the child who fell off the seesaw and wants to sue or those of the millions of children who want to use seesaws? We cannot have it both ways. Allowing one child to sue, even if he does not win, means that seesaws disappear. A common choice must be made as a matter of law. This is not a question of rights. Again, whose rights do we recognize: those of the person who wants millions because a child was born with a tragic illness or those of the countless patients who do not get care because of the rippling effects of a system that is almost universally distrusted?
There is a paradox in the language of rights. The rights our founders gave us were rights against state power. Government cannot tell us what to say or take our property away without due process. These new rights involve the use of state power in the form of a lawsuit, coming down to that fateful jury verdict, after which a government marshal may compel you to pay millions of dollars to someone else. The new rights allow private citizens to use state power against other private citizens but without anyone on behalf of society making judgments of what is reasonable and what is not. We have literally turned the idea of rights upside down, allowing self-interested individuals to use law as a weapon of extortion.
After President Bush called for liability reform last summer, Senator John Edwards, a former malpractice lawyer, stood over the grave of a child who died as a result of a medical mistake. As their lawyer, Edwards won over $20 million for the family. Standing over the grave, he said that this family certainly did not think that they had hit the jackpot. Indeed they did not. Making the family rich can never make up for their loss. Isn’t the better form of accountability to make sure such mistakes do not happen again? Who paid all that money? No one ever asked the question. The money does not come from the Soviet Union. It comes out of our health care system. It is impossible to trace, but people somewhere lost their lives because $20 million was not available to take care of them. Although it is true that no family that lost a loved one could ever be said to have hit the jackpot, the same cannot be said of John Edwards. If he got the usual fee, he pocketed more than $7 million because of their personal tragedy.
United States citizens today are confused by a legal system that holds the promise of no bad results and yet as a consequence of this fool’s gold see a system of health care that is melting down. Changing the public perception of the goal of justice is needed to accomplish any meaningful reform. Justice is not supposed to be an ad hoc plebiscite that tolerates conflicting rulings on what is good care and what is not. Justice must be reliable. Justice must be predictable. Justice must make deliberate judgments. Otherwise it is not justice. We will never get a solution until the US public understands this.
It is important to work together. It is a great cause, and we do not have a choice.
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Footnotes |
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doi:10.1016/S0029-7844(03)00619-7
* You can join in supporting Common Good by contacting us at 212-681-8199 or visiting http://www.cgood.com. 
This article has been cited by other articles:
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  M. D. Pearlman Patient safety in obstetrics and gynecology: an agenda for the future. Obstet. Gynecol., November 1, 2006; 108(5): 1266 - 1271. [Abstract] [Full Text] [PDF]
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R. L. Barbieri Professional Liability Payments in Obstetrics and Gynecology. Obstet. Gynecol., March 1, 2006; 107(3): 578 - 581. [Abstract] [Full Text] [PDF]
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J. R. Scott Expert Witnesses: Perpetuating a Flawed System Obstet. Gynecol., November 1, 2005; 106(5): 902 - 903. [Full Text] [PDF]
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 R. M. Friedenberg Malpractice Reform Radiology, April 1, 2004; 231(1): 3 - 6. [Full Text] [PDF]
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N. Pariser, B. Speth, S. J. Farrell, E. G. Koch, M. Meyer, B. Speth, and J. M. Gibbons Jr Springtime for Obstetrics and Gynecology: Will the Specialty Continue to Blossom? Obstet. Gynecol., January 1, 2004; 103(1): 197 - 200. [Full Text] [PDF]
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