THE BEST COURSE OF TREATMENT

4 min read

Lose-lose is perhaps the best way of describing the sorry state of justice in American health care. Doctors are going on strike and even quitting because of ruinous increases in liability premiums. Patients aren’t doing so well, either: thousands die annually because of simple slip-ups, and no one seems to be able to revoke the licenses of inept physicians.

Congress failed in its recent attempt at reform, which would have capped jury awards for pain and suffering at $250,000. In truth, the bill offered only limited relief to beleaguered doctors, and was easy to attack as anticonsumer. Why protect doctors at the expense of victims of malpractice?

The demise of the bill capping damages is not necessarily a setback for the cause of legal reform. Instead, it is an opportunity to break free from the partisan stalemate and address the underlying flaws of a legal system that is out of control.

Doctors and patients aren’t natural enemies. They’ve been driven apart by an unreliable system of justice that tolerates both abusive claims and bad care, breeding distrust on both sides. Studies about jury awards in health care confirm what every doctor fears — and every victim should fear: justice is random. Most doctors who make mistakes don’t get sued. But most lawsuits are against doctors who did nothing wrong; the cases involve human tragedy but not medical negligence.

The common ground here is the need for reliable justice. For doctors, reliability would offer protection against baseless claims. For patients, it would provide victims with quicker compensation without the legal costs that consume almost half the awards. A system of reliable justice could also remove from practice incompetent doctors who often escape accountability now by threatening to sue their hospital or state licensing board.

Creating a reliable system of medical justice, however, requires changing one aspect of the system that is so ingrained it is hardly even part of the debate: the jury. Expert judges, not juries, must decide what is a valid claim.

Even modest legislative reform is routinely resisted as trespassing on the hallowed right to take every issue to a jury. But this right is generally misunderstood. In criminal prosecutions, juries play a critical role as our protection against abuses of government power. Juries are our defense. But in a civil case, where citizens can use the justice system as an offensive weapon, the most important social value is predictability.

Law is the foundation of freedom in part because it provides guideposts of right and wrong. But those legal guideposts don’t exist unless judges make rulings on who can sue for what. Juries can’t make consistent rulings of what is reasonable care and what is not. Juries have no authority to make rulings at all. Every case is a blank slate. It’s yea or nay, and on to the next jury.

The Constitution’s right to a jury trial does not require judges to abjure their traditional role of defining the boundaries of reasonable dispute. The role of juries in civil cases is to decide disputed facts, like whether someone is telling the truth. It is not to declare standards of care that affect society as a whole. That’s why the Seventh Amendment qualifies the jury right as applying to “suits at common law” and ends by saying that “no fact tried by jury shall be otherwise re-examined . . . than according to the rules of the common law.” Judges declare the standards of law that affect all of society; juries decide disputed facts in a particular case.

Today, however, juries are being asked to decide not only disputed facts but standards of medical care. How does a jury know how to do that? More important, how does a doctor know what standards to abide by? Every time a sick person gets sicker, it’s easy to come up with a theory of what a doctor might have done differently. Chemotherapy didn’t work, but maybe radiation would have.

Since the earliest days of the common law, there has always been a tension between what’s a legal standard and what’s a disputed fact. Until recent decades, however, this distinction didn’t matter much to society. Social mores kept people from suing except in egregious cases. No longer. Now lawsuits are limited only by the imaginations of self-appointed victims and their lawyers. Drawing the line can be difficult for a judge, but not drawing the line transforms justice into a free-for-all.

Unreliable justice harms patients more than it does doctors. Pervasive distrust is causing a meltdown in American health care. Quality suffers as fear of lawsuits chills the professional interaction necessary for informed and humane care. Costs spiral out of control in part because doctors squander resources with unnecessary tests in order to build a record just in case they get sued.

A reliable system of medical justice could take many forms, but because the critical issue in virtually all cases is whether the doctor complied with appropriate standards of care, the key element must be expert judges ruling on standards of care. Specialized tribunals are common, in areas ranging from taxes to vaccine liability. A bill to finance pilot projects for special medical courts is scheduled to be introduced in the Senate later this week.

Defenders of the current system take pride in the fact that each case goes to the vote of the people. But that’s not the rule of law; law that changes from case to case is the opposite of law. Shifting decisions about standards of care to judges from juries seems radical, but doing so is essential to restore a critical precept of American justice: that like cases be decided alike.

The victim of unreliable justice is society as a whole, not just doctors. That’s why reform must focus not only on protecting one group with caps on damages, but also on achieving a reliable foundation of law for all.

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