NCPA - National Center for Policy Analysis


January 9, 2007

There are a number of forces contributing to the high cost of health care -- including government mandates and lack of market discipline. One of the largest drivers of excess costs, however, is American justice -- or more accurately distrust of American justice, says Philip K. Howard, chair of Common Good, a non-profit organization.


  • The direct costs of the malpractice system, about $28 billion a year, are only the tip of the iceberg.
  • Defensive medicine -- the practice of ordering the procedures and tests that are not clinically indicated -- is practiced by over 90 percent of physicians, according to a recent study.
  • Hospitals must often operate like slow motion zones; no choice can occur without stacks of forms and disclosures with multiple witnesses -- all designed to "build a record" in case there's a bad outcome.

To help correct the problem, special health courts need to be enacted, says Howard. One example, developed by Common Good and the Harvard School of Public Health, would incorporate the following features:

  • Juries would be replaced by specially trained administrative judges, advised by neutral experts paid for by the court, who would make decisions and write opinions on standards of care.
  • A liberalized standard of recovery would provide compensation to injured patients based on whether the injury should have been avoidable.
  • An individual injured by malpractice would receive 100 percent of his or her actual monetary losses, including future lost income -- but damages for pain and suffering would be paid according to a preset schedule depending on the injury.

Source: Philip K. Howard, "Strong Medicine," Common Good, January 6, 2007.


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