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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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.