Philip K. Howard’s on the Barriers to Reform

by Reihan Salam

I appreciated Philip K. Howard’s brief discussion of the barriers to the creation of special health courts, an idea he sees as the most sound way to reform America’s approach to medical malpractice:

A leader of the Democratic caucus in the House said he understood why this was such a good idea. Then he asked, “How do the trial lawyers feel about it?” They hate it, I answered, because they feed off the unreliability of the current system, which consumes almost 60 percent of awards in lawyers’ fees and administrative costs. “Then we can’t support it,” he replied. But whom do they represent, I asked — AARP and leading patient groups are on our side. “It doesn’t matter,” he said frankly. “The trial lawyers give us the money.”

I went to the White House and made my pitch about how great it would be for President George W. Bush to stand on the lawn with consumer groups and propose a legal reform that would actually be better for patients who were injured by mistakes, as well as for doctors unfairly accused. The senior staffer with whom I was talking understood the virtues of the proposal. But, he said in somewhat guarded language, “It’s better for us to propose traditional tort reform capping damages.” But that doesn’t solve the problem of defensive medicine, I argued. “I understand that,” he acknowledged, “but we benefit that way.” What are the odds of traditional tort reform passing? I asked. “Oh, about one in 100,” he answered. A junior staffer had to translate what was happening: The White House wanted to propose a reform it knew would fail so that Republicans could blame the Democrats for not solving the problem.

This behavior by high-ranking public servants should be considered scandalous. People in Washington consider it business as usual, and don’t even raise an eyebrow.

Howard considers behavior of this kind the mark of a “deviant subculture,” and he makes a strong case. As Howard understands, however, it is hard to see how this dynamic will change in the absence of a crisis that palpably impacts the median influencer. (We are living through a crisis that impacts the median American, but the median American and the median influencer aren’t one and the same.) And even in that event, relatively “small-bore” issues like malpractice reform can easily slip through the cracks. This, incidentally, strikes me as a strong case for legislative specialization: Congress would benefit if more members sought to cultivate expertise around a relatively narrow policy domain and to “take ownership” of it.