Philip Howard in the Wall Street Journal

February 28, 2006

In a letter to The Wall Street Journal, Common Good Chair Philip K. Howard questions whether the ABA’s recent resolution opposing health court pilot projects stems from the financial interest trial lawyers have in maintaining our current, broken system of medical justice. 

Juryless Health Courts Could Stabilize 'Crisis'
February 28, 2006; Page A17

The American Bar Association may be in favor of broad opportunities in law schools ("Affirmative Blackmail," Rule of Law, by David E. Bernstein, Feb. 11), but it reliably opposes reforms when its own pocketbook may be affected, even in areas in crisis such as health care. Recently, over the objections of its own Health Law Committee, the ABA House of Delegates opposed pilot projects for special health courts.

According to studies by the Institute of Medicine and others, nearly universal distrust of American justice is causing American health care to suffer a kind of nervous breakdown. Doctors squander tens of billions of dollars in unnecessary "defensive medicine." Professional interaction is chilled by legal fears, leading to tragic errors. Getting rid of inept doctors is, literally, a trial -- they invariably hire a lawyer and threaten to sue.

To begin to restore order to health care, a broad coalition of patient advocates, consumer groups and providers has come together behind the idea of creating pilot projects for special health courts. These health courts, developed by a joint venture of Common Good and the Harvard School of Public Health, would have judges focused on health care, neutral experts, incentives for prompt compensation, and written opinions to offer guidance on good practices. As with other administrative courts, health courts would have no juries. America has a long tradition of specialized courts for areas needing special expertise, including admiralty courts, bankruptcy courts and workers compensation systems. A bipartisan bill is pending in the Senate.

Trial lawyers usually pretend to represent consumers. But large consumer groups such as AARP and leading patient advocates are supporting health court pilot projects. Maybe the lawyers are just representing themselves. More money in the current malpractice system goes to lawyers than to injured patients.

Philip K. Howard
Chairman
Common Good

Click here to read Common Good's statement in response to the ABA resolution.

And in a piece for the National Law Journal, Paul Barringer of Common Good and David Studdert of Harvard University comment on the ABA’s decision to oppose health court pilot projects.  Barringer, Common Good’s general counsel, sees health courts as “‘an approach that will expedite compensation and dispute resolution for injured patients,’ and also establish a more reliable system for health care providers.”  Studdert, a professor at the Harvard School of Public Health, which is working with Common Good to develop a health court system, suggests that we try health courts “‘in a few places … for a few years.’”  “‘If it's not a better system,’” he says, “‘then we can go back to the dysfunctional tort system.’"  In addition to bills that have been introduced in both houses of Congress to “facilitate” health court pilot projects, bills have recently been introduced in both the Virginia and Maryland legislatures to study the issue.

Click to read the article.   (Available to subscribers only.)