On April 24, the Joint Center and Common Good hosted a forum titled "Beyond the Patient’s Bill of Rights: Do We Need a New System of Medical Justice?" The forum panel included Common Good’s Philip Howard; Stanford University Economist Alain Enthoven; Karen Ignagni, executive director of the American Association of Health Plans; and Dr. Donald Palmisano, an internist and member of the Board of the American Medical Association. The forum was introduced and moderated by Robert Hahn and Robert Litan, respectively, co-directors of the Joint Center.

After a welcome and introduction by Mr. Hahn and Mr. Litan, Philip Howard framed the discussion, advancing the idea that America needs a new system of medical justice—one that completely rethinks the relationship between healthcare and the legal system; between patients, physicians, and attorneys.

Alain Enthoven characterized the current medical justice system as "legal terrorism" conducted against doctors and health plans by certain plaintiff’s attorneys—and that real losers are patients who must bear rapidly increasing healthcare costs. In California, health insurance premiums are increasing 25% each year, due to class action lawsuits and the incidence of doctors practicing "defensive medicine" in order to protect against legal liability. Professor Enthoven asserted that "the problem of course is that my right, and the right of my fellow workers, and the rights of millions of Americans to contract for affordable cost contained healthcare for our families has been grievously impaired" by legal extortion.

Professor Enthoven recommended several reforms, including:

• Eliminating juries from medical cases, replacing them with specialized, expert judges.
• Damage caps on medical malpractice awards
• Stricter pre-trail screening of plaintiff’s claims.
• Limits on contingency fees.
• Increased reliance on binding arbitration.
• Institution of an "English Rule" where losing plaintiff’s bear defendant’s legal costs.

"There ought to be a restored sense of justice and respect for the common good to replace the rampant greed and self-aggrandizement that we now connect with trial lawyers." –Alain Enthoven

On behalf of health insurers, Karen Ignagni discussed some of the political dynamics of medical justice reform, reminding the audience of the power plaintiff’s attorneys wield in Washington and in the states. She agreed with Professor Enthoven’s description of the problem, and concurred with his reform agenda. But Ms. Ignagni decried not only the damage caused by lawyers; she also pointed a finger at the medical community itself:

"I don’t think we can fight personal injury lawyers with one hand and enrich them with another. I think all of us in the healthcare community have to take a hard look at our roles in promoting the current system of injustice rather than justice. We have too many suits going on among stakeholders in the healthcare community, and we could be the first to set an example."

Ms. Ignagni expressed hope that rising healthcare costs and diminishing access to care would force the public and politicians to focus on medical justice reform.

"The single most important stumbling block is as the Institute of Medicine called it, ‘the culture of blame in healthcare.’"--Karen Ignagni

Donald Palmisano reported that doctors feel "threatened by a legal system that is out of control." Rising liability insurance premiums, which result from "frivolous lawsuits and a trend of increasing jury awards" are forcing doctors to leave practice or raise their costs.

It is the patients who suffer from lawsuit abuse, asserted Dr. Palmisano: "It drives up the cost of office visits, diagnostic tests, and prescriptions, and it creates long waits, or long trips for certain procedures patient’s can’t get locally because specialists have been forced from high-risk practice areas. The media now reports almost daily that the situation is so bad in some states that emergency departments are losing staff and scaling back certain procedures, such as trauma units, as good physicians are forced to limit services, retire early, or move to another state with a less litigious climate."

Legislative tort reform, modeled after the long-standing laws in California (which, he asserted, saves over $1 billion a year in liability premiums), is high on the AMA’s agenda. Dr. Palmisano concluded. "Physicians will not retreat from tort reform. We will advance from all directions."

"The reality of being sued is daunting to just about everyone in the medical community… it stifles the advancement of new medical treatments and medications, inhibits patient safety and quality improvement initiatives, overwhelms the healthcare system with paperwork leaving less time for patient care, and discourages qualified candidates from pursuing a career in medicine."—Dr. Donald Palmisano