Tort Reform...A Legal Critics Opinion

A day after 3,000 "Occupy Chicago" discontented protesters gathered outside the Art Institute of Chicago—where members of the Futures Industry Association and the Mortgage Bankers Association were holding a reception—about 50 people gathered nearby to hear activist, attorney and author Philip K. Howard declare "Nothing is working the way it should."
According to Howard, one step to help set things right would be to implement special health courts—a concept he has worked on with the Harvard School of Public Health.

Speaking away from the lectern and without a microphone, Howard noted that there are nine medical categories for injuries caused by sea lions and 12 for bee stings, and that a doctor can't say "How are you, Mr. Howard?" in a hospital for fear of violating federal privacy laws.
But it's not just healthcare that's suffering, Howard argued. He said fear of litigation has caused school playgrounds to be "stripped of anything fun."

Howard told the audience of doctors, lawyers, healthcare administrators, civic leaders and Columbia College journalism students that these problems are caused or exacerbated by people feeling powerless to oppose nonsensical legal or bureaucratic rules imposed on them by well-meaning politicians—many of them now dead—who sought through the rules to keep anything bad from ever happening. And now legislators lack the will to amend rules to fit current circumstances, he said. Howard urged the students to question and make fun of the rules and "write about this with clear eyes."

The current environment won't be changed by caps on malpractice damages or other simple fixes, he said.

Tort reform, he asserted, will not put seesaws back in playgrounds. Texas physicians still admit to engaging in costly defensive-medicine practices even after that state's much ballyhooed malpractice caps were put in place, Howard noted.

The system Howard envisions would not have juries but would be led by full-time health judges with a budget to hire neutral experts to testify on the merits of a malpractice case.
Jerry Latherow, president of the Illinois Trial Lawyers Association and the husband of a physician, "respectfully disagreed" with just about every point Howard made—especially with regard to the scope and cost of defensive medicine. He also questioned the ability of the courts to remain impartial, saying health judges would most likely travel in the same social and business circles as defendants rather than plaintiffs.

But health courts are just a part of Howard's crusade to "restore the capacity for humans to take responsibility." He gave several plugs for Project Start Over, the campaign launched by his not-for-profit organization.

He urged audience members to join the fight, and noted that former New Jersey Sen. Bill Bradley and current Indiana Gov. Mitch Daniels have expressed interest in the cause as has Jon Stewart.