12.09.09

Health Courts: The Latest Fad or the Answer to Medical Liability Reform?

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When I discuss tort reform in my health law class, I usually start with the following: if tort reform is the answer, what is the question? As I suggested in an earlier post, there’s little agreement on which tort reform policy measures to implement. Despite some excellent recent empirical scholarship from Professors Hyman, Black, Silver, and Sage, and Professor Arlen, among others, that really has contributed to a better understanding of medical liability costs and trends, defensive medicine, etc., policymakers seem no closer now to resolving the medical liability conundrum than 20 years ago. In the interim, various proposals, from no fault systems to enterprise liability, have generated considerable enthusiasm, but little policy change.

As a result, the debate remains as stale and ideological as ever—with one exception. The emergence of health courts as a legitimate policy response may be ideological, but is certainly not stale. Although it builds on the American Medical Association’s previously proposed administrative system for resolving medical liability disputes, the current health courts concept is far more extensive than earlier proposals.

As the latest medical liability reform fad, the idea has enthusiastic proponents. In part because of the strong public relations campaign the group Common Good has waged, the plan is attracting adherents among policymakers and some health policy scholars. For example, the Obama administration has recently issued a call for proposals to experiment with various strategies, including health courts, to reform the medical liability system. In addition, the Robert Wood Johnson Foundation has funded a Harvard School of Public Health/Common Good project to evaluate health courts. Journalists, including David Leonhardt of the New York Times, have also favorable discussed health courts.

But I am dubious that health courts will adequately protect patients. As Phil Peters details in a thorough and compelling critique of the concept,* “the modest benefits likely to be produced by the current health court proposal are more than matched by the risks of bias and overreaching that these courts would also present.” (Phil’s preferred policy solution is enterprise liability, which, despite favorable academic support, has failed to gain much traction among policymakers.)

My suspicion is that health courts will end up being the equivalent of arbitration panels for stockholder claims against brokerage firms—patients won’t have a chance. Even if there’s such a thing as independent physician experts to provide advice on the merits of a patient’s claim, which I doubt, I suspect that patients will be at a considerable disadvantage. It has the potential to be the functional equivalent of the locality rule (i.e., where patients had trouble obtaining testimony from local physicians). In all likelihood, injured patients will not fare well if the concept of health courts is widely adopted and will do little to alleviate the root causes of substandard care.

As a social scientist, I fully support experimentation to determine which liability reforms might be effective in balancing the need to compensate patients injured through medical intervention with the need to protect physicians from unwarranted or excessive jury verdicts. As long as the evaluations of the interventions are scientifically rigorous and independent, I fully support experimenting with health courts.

Yet these aren’t the only studies that should be conducted. There should be a study of what happens to people injured as a result of substandard medical care in states where tort reforms have rendered medical liability litigation all but extinct (including Michigan and Texas). Who pays for their medical care and other economic losses? Have liability insurance rates declined in these states? Are medical practice patterns different as a result of curtailing liability? My guess is that little has changed in those two states.

Even if my concerns about health courts were correct, proponents would legitimately ask, “relative to what?” If the health courts concept is not the answer, what is? What’s the alternative regime that would do a better job of providing compensation, deterring substandard care, and enhancing patient safety? So far, none of the stated alternatives has provided a clear answer to that question. And I really don’t have a very good answer.

Perhaps the apology movement offers a better alternative. To be sure, it will not eliminate the need for liability determinations. But it offers the best chance for reducing the amount of litigation against physicians. Lucian Leape, a pediatric surgeon before his successful advocacy for a systems approach to patient safety, has argued persuasively that most injured patients want to hear an apology from the physician for the error and what steps the facility will take to ensure that the error is not repeated.

Ultimately, changing the culture is more important than arguing over the venue for litigation. If Congress wants to enter the medical liability conundrum, its most useful contribution would be to provide incentives to expand the apology strategy and to focus on enhancing patient safety that would avoid the need to resort to litigation.

*Philip G. Peters, Jr., Health Courts? 88 B.U.L. Rev. 227 (2008).

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Comments

Almost any legal reform would be an improvement on the current system. Right now, we are abusing the medical profession and missing most cases of true medical negligence. Is this performance worth wasting tens of billions of dollars on defensive medicine? More at http://www.MDWhistlblower.blogpspot.com under Legal Quality

Peter Jacobson says:

If the experience in Michigan is a guide, it’s not correct to say that almost any legal reform would be an improvement, unless the only objective of the reform is to potentially reduce liability insurance premiums. Because of Michigan’s tort reforms, it’s very difficult to initiate medical liability litigation, even for clearly legitimate claims.

As a result, injured patients are left without any remedies. Would fewer defensive medical practices (even if they could be documented) justify the lack of compensation? What about steps to reduce the incidence of substandard care?

To me, the focus on defensive medicine is a distraction and generally overstated. That said, I’m acutely conscious of physicians’ legitimate complaints about the current system and frustrated that we have not developed an adequate alternative.

mkirschmd says:

We need to define our objectives. Are we looking for the legal system to deter negligence? It doesn’t. Are we looking to compensate those injured my malpractice? Most are missed by the system. Is it fair that only patients who have been injured by negligence be compensated? Should all serious adverse reactions be compensated to serve the greater good? I think the performance of the current system is so dismal than an entirely new approach is needed, not to serve doctors’ interests, but to serve the public interest. http://www.MDWhistleblower.blogspot.com

Peter Jacobson says:

I certainly agree that defining the objectives is essential. Any liability system must meet three basic policy objectives: deterrence, compensation, and accountability. When thinking about alternative approaches, such as health courts, the issue is whether the new approach will do a better job across these three dimensions.

No fault systems, enterprise liability, alternative dispute resolution, and health courts all have different strengths and weaknesses. None of them is necessarily superior to one another or to the current system. As always, it’s a question of trade-offs. If there were a obviously superior alternative, it would have been enacted long ago.

Remember, we’ve gone through no fault as the solution, then enterprise liability, and now health courts. Maybe we should reconsider the advantages of no fault liability systems or give enterprise liability a chance to work.

Peter Jacobson says:

P.S.

I should have reiterated a point made in the initial commentary. We need to focus on patient safety ex ante–eliminating substandard care–rather than on the venue for determining liability ex post. Both need to be addressed, but the former can certainly ease problems with the latter.

mkirschmd says:

Thank you for your comment, Peter. I disagree with your statement: If there were a obviously superior alternative, it would have been enacted long ago. We could apply your same statement to the health care situation. There are many clear reform to the medical liability situation and the health system. They are not enacted because of politics and stakeholder agendas and entrenchment. Folks are dug in protecting their own interests over the greater good. In my view, this is what is holding us back. http://www.MDWhistleblower.blogspot.com

Peter Jacobson says:

Good comparison to health reform. I certainly agree that there are clearly superior alternatives to the current health care system (particularly with regard to access for uninsured and underinsured populations), and that entrenched political interests block both health care delivery and tort reforms.

In both areas, policymakers must make a series of tradeoffs between competing objectives. For health care reform, the key tradeoff is between access and costs. In tort reform, the key tradeoff is between adequate compensation for injured patients and protecting physicians from unfair jury verdicts. It’s in this sense that the various tort reforms do not demonstrate a clearly superior alternative.

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