Philip K. Howard has an interesting op-ed in Time magazine calling for reform of the medical tort system.

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.

The problem is that judges and juries tend not to have sufficient capacity to weigh the complex issues involved, so judgments come down to emotional issues. Howard suggests the creation of special medical justice 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.

An interesting solution. I’m not thrilled with the idea of assigning a set dollar value for various injuries that doesn’t weigh other factors, but it seems like a useful starting point. Also, if we’re going to have expert tribunals set up, why not also give them the power to suspend or revoke licenses of incompetent doctors? While ensuring that victims are compensated is important, it is much more vital that we get the handful of bad doctors out of the system so they do no more harm.

FILED UNDER: Law and the Courts, Science & Technology,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Don Young says:

    This idea has a lot of good points, but would be useful in areas not mentioned, such as most tort claims involving any type of injury. I see a need for this in auto accident litigation, where I have noticed the goal of the attorneys is to have a pool of the must gullible people available. Anyone with any intelligence will likely see through many of the arguments made to play of the emotions of the juries. Another problem is election of local level judges, but that is a whole other topic.