More Defensive Medicine

In two earlier posts, "Approaches to Reducing Healthcare Costs" and a response to comments on that post, I ruminated on the issue of defensive medicine and how this ubiquitous practice contributes to the inflating healthcare costs in the United States. I wanted to share an editorial by Philip K. Howard published in the Washington Post a few days ago concerning this issue. Mr. Howard is an attorney and chairman of Common Good, a non-profit legal reform group.

In his piece, Howard calls for an end to the "erratic, expensive and time-consuming jury-by-jury malpractice system." His solution would be to replace traditional malpractice litigation with cases handled by a specialized court handling healthcare matters exclusively. You could compare these courts to the U.S. bankruptcy courts or perhaps to the adjudicative bodies of government agencies.

I do not dispute that a change of that nature in malpractice justice would save doctors, facilities, and medical professionals some money and, theoretically, reduce costs for medical patients and insurance policy holders. But let's think at a very basic level what the implementation of a health speciality court would do. The health courts would no doubt conduct only bench trials, putting malpractice decisions in the hands of professionals (either health professionals or legal professionals well versed in medical issues) rather than juries. Obviously, to save costs, Howard's idea must be that the health courts would find more often for defendants rather than plaintiff-patients. This presents the potential for a lose-lose situation for wronged patients. Either they can continue to pay inflating insurance premiums and rising healthcare costs, or they can sacrifice a chance to seek redress with a jury of their peers as fact-finder.

The question to address next would be whether the potential savings in healthcare costs to all patients and policy holders would justify the relinquishment of jury medical malpractice trials. I do not have an answer to that question. However, I do have reservations about the effects that a professionally sympathetic adjudicative body would have on patient care, even if it might bring down costs somewhat.