- The Washington Times - Monday, December 6, 2010

Lawmakers - always sensitive to special interests - don’t pass sensible reforms unless monied backers push for them.

That’s the case with special health courts for medical malpractice lawsuits. Four bipartisan federal debt-reduction task forces - including President Obama’s deficit commission report on Friday - have endorsed health courts in the past 64 days. It’s time for Congress and state legislatures to fill this prescription.

When it comes to resolving disputes about purportedly botched care, today’s system is a mess. High malpractice-liability costs chase some doctors into other fields and force higher prices for medical care. According to the reform group Common Good, the system “compensates few injured patients and has high administrative costs. … Evidence suggests that it also [negatively] impacts health care quality, by discouraging reporting information about errors and near misses in treatment.”

One problem with the usual jury system for malpractice cases is jurors usually lack the scientific background to make competent judgments about what constitutes negligent practices and how to apportion blame. Health courts would have judges handling malpractice claims full time. “The judges would make written rulings to provide guidance on proper standards of care,” according to Common Good. “These rulings would set precedents on which both doctors and patients could rely.” The system would become more predictable for both sides and give more patients a chance at equitable awards while making it unlikely too many would hit astronomical jackpots.

“For better safety as well as to contain costs, providers need to trust the system of justice to reliably sort out good care from bad,” Common Good founder Philip K. Howard, author of the best-selling book “The Death of Common Sense,” told The Washington Times. “Otherwise, doctors go through the day thinking of self-protection instead of doing what is the most sensible thing for the patient’s care.”

In addition to the presidential commission report on Dec. 3, health-court endorsements came on Sept. 30 from the New America Foundation’s Committee for a Responsible Federal Budget, on Oct. 13 from Esquire Magazine’s comprehensive Commission to Balance the Federal Budget, and on Nov. 17 from the Debt Reduction Task Force of the Bipartisan Policy Center. All four panels featured former congressional leaders of both parties along with academics and think-tank experts.

The sensibility of health courts is so accepted that lawmakers seem to take their eventual adoption for granted. But there’s the rub: If a proposal seems capable of passage at any time, but no potent interest group is pushing for it, lawmakers feel no urgency to do the work of enacting it. If a deep-pocketed lobbying group were interested in the issue and donating to congressional campaigns, health courts would have become law a long time ago.

Legislative lethargy might not have had political consequences several years ago, but now perceived apathy is politically perilous. The public is more engaged and more knowledgeable today. And because of the passage of Obamacare, Americans are also more fearful of their health coverage getting worse and more angry that politicians aren’t doing anything about it. Polls show large opposition to jackpot justice. Failing to rein in today’s legal excesses is legislative malpractice that harms American health care.