While tort reform has been initiated in several states to reduce damages stemming from civil suits, Howard contends that those efforts do not erase the patchwork of various legal standards where a jury could find liability in one case, while a separate jury—dealing with same general facts—could find no liability. An administrative court for healthcare could set the stage for more efficient practices, he says.
Trial lawyers have opposed the concept, which Howard says is not surprising, since those lawsuits put plenty of money in their pockets. The lawyers say it's not just about the money, however.
In a 2007 study professors Maxwell Mehlman and Dale Nance of Case Western Reserve University in Cleveland, Ohio characterized the health courts idea as an attempt to eliminate or reduce the rights of injured patients. Among other things, they wrote that "many valid claims would be arbitrarily limited or barred altogether" and "wrongdoers would not be held accountable."
Indeed, Howard says that while some Democrats and Republicans in Congress have initiated legislation for health courts, those efforts have stalled on Capitol Hill.
"There were a number of provisions for health care courts and they all got killed (by Democratic leadership) because the trial lawyers used their influence to block them," he says. "The political environment has to be such that there is an imperative to control costs, and that will have to trump the political influence of the trial lawyers. It's really that simple."
Within the next four years, either Obama or Romney will have no choice but to work on bending the healthcare cost curve, and health courts are a big step in that direction, Howard says. "The next Congress or next president is going to have to deal with those issues," he predicts.