Legal News

Howard?s Prescription for Med-Mal Reform: Scrap Layperson Juries

By Ashby Jones

We might not agree with everything Philip Howard writes, but more often than not, we can at least appreciate his point of view. And he has lots of them. Seems like hardly a day passes when we don’t read something else penned by Howard (Yale, UVA Law), a partner at Covington & Burling in New York and the author of several books on legal reform, including 1995’s The Death of Common Sense: How Law is Suffocating America.

Today’s Howard dispatch, on health care and the law, comes courtesy of the NYT.

Howard’s main point isn’t new: that the current legal system doesn’t mesh well with our current medical system. But his prescription does strike us as provocative, if not entirely novel: scrap the jury system in medical malpractice cases. He writes:

Like a cancer, this legal anxiety corrodes relationships with patients. Doctors and nurses don't want to speak up for fear of assuming legal liability, and this causes unnecessary errors. Under instructions from lawyers, they don't apologize or offer explanations when things go wrong. They sometimes conceal errors in an effort to avoid a legal ordeal. Even in ordinary daily encounters, an invisible wall separates doctors from their patients. As one pediatrician told me, "You wouldn't want to say something off the cuff that might be used against you." . . .

Restoring a foundation of trust requires a new system of medical justice. Medical cases are now decided jury by jury, without consistent application of medical standards. . . . America needs special health courts aimed not at stopping lawsuits but at delivering fair and reliable decisions. A special court would provide expedited proceedings with knowledgeable staff that would work to settle claims quickly. Trials would be conducted before a judge who is advised by a neutral expert, with written rulings on standards of care.

On the topic of damages, Howard has this to say: “With a special health court, damages would consist of all lost income and medical costs, plus "pain and suffering" based on a set schedule depending on the severity of the injury.” Sounds like punitives go out the window under Howard’s plan, which he urges Congress to consider.

LB Readers, there are plaintiffs lawyers out there who would argue that this is all nonsense; that the current system has actually done a good job of curbing incidences of malpractice — and that the plaintiffs bar, and the threat of big verdicts, helps keep doctors in check. Any thoughs?

Full post as published by Law Blog - WSJ.com on April 02, 2009 (boomark / email).