Dr. Eric Novack: Health care cases need special courts

In a recent opinion piece in The Arizona Republic, our contributor wrote:

"Medical liability reform is sure to remain in the news and likely will be on the November ballot.

Specialized health courts should be our future here in Arizona.

The medical liability system ought to allow people who are injured due to substandard care to be compensated. Injured parties ought to receive the benefits of prompt, consistent and reasonable compensation."

The medical liability system ought to deter substandard care. It should not deter care from being delivered.

Physicians should look at the medical literature and, in conjunction with patients, determine the best care. When physicians perform within those standards, they should not be fearful. Medical liability ought not be arbitrary.

The current system certainly does not give injured patients prompt or consistent compensation, and it does not often get it right when it comes to reasonable compensation. The reality is that medicine has many gray areas, leaving physicians always at risk. The current system is arbitrary.

Special health courts have the potential to give Arizonans the medical liability system they deserve.

In special health courts, judges with additional expertise in medical matters would preside. An independent panel of experts would decide if the appropriate standard of care was delivered.

Both sides would be able to provide additional experts. A jury of peers could continue to function. However, the expert panel would decide if the standard of care was met.

Over time, previous decisions and the medical literature would give physicians the tools they need to provide better care more often. Advances in medicine are most often slow, and good ideas in the short run often do not pan out over the long run. Health courts would help establish a baseline of quality medical care that would only improve over time.

Physicians and the citizens of our great state should to bring health courts to Arizona."

Dr. Novack is an orthopedic surgeon and the host of a Sunday afternoon radio program on health care policy and politics on KKNT-AM (960).

Comments

[Matt]

2 questions

1. How do we get around those pesky rights to a jury trial enshrined in the US Constitution and specifically applicable to medical malpractice (a suit at common law).

2. Why do we need health courts to "establish a baseline of quality medical care that would only improve over time." Why can't physicians do that right now?

[eric Novack]

Matt- I will try to give you a 'non-attorney' answer. This will also be a part of a future post.

As to the question of a jury trial- there are many examples of specialty courts in the US-- admiralty, bankruptcy, tax, to name a few. Different states also already have specialty courts in many areas--juvenile courts, courts for the homeless, family law courts, and others.

The issue of medical liability also has traditionally (and still today) has been considered a state issue and not a federal one. Thus the parallel efforts for medical liability reform in the states and in Congress.

Additionally, though a jury trial may be in the Constitution, the rules and processes are certainly not designated. Thus- the number of jurors, the role of expert witnesses, statute of limitations, caps on liability, rules on which county the trial must be held in, alternative dispute resolution, are all in play for the states (or federal government).

Remember that each state has different laws surrounding workers' compensation. Generally, workers' comp is 'no fault': that is to say that in exchange for forfeiting the right to sue the employer, the employee is entitled to a certain slate of benefits from on-the-job injuries.

To my knowledge, this has never been challenged successfully in court. In fact, in Arizona ((my home state), the central rules governing workers' comp as a no-fault system are clearly stated in the AZ Constitution (and were just reaffirmed in the Summer of '05 by the AZ Supreme Court).

As to your second question- it can take even more explaining (and was also a subject of a later posting), but let me try to be brief and clear...

Medicine is not math-- the data around the success of certain treatments is often uncertain and changes. A recent review article in the Journal of the Amer. Med. Association found that, of the 'major studies' published in the first part of the 1990's, fully 1/3 were refuted within 10 years.
A basic principle of medicine- per me- is that while there is generally more than one correct answer to treat a condition, there are almost always identifiable 'wrong' answers.

The national push for 'evidence based medicine' and outcomes has it backwards. By attempting to have bureaucracies set the the 'best' treatment- a goal which many might say is oxymoronic for a large government bureaucracy (ie. medicare)- what will happen is that the 'ceiling' will be set on care. This will tend to retard the advancement of treatments for medical conditions. Rather, we ought to be moving to set the 'floor'. This determining of the 'absolutely do-nots' for healthcare conditions would then set the stage for establishing baseine acceptable care.

I make the case that this is where the legal system can help medicine and not hurt medicine. By having expert panels hearing cases, over time, and allowing them to become legal precedent (currently, the standard of care must be re-established during each and every medical liability case), the 'standard of care' baselines would begin to be set.

Medical students and residents would begin to start studying not just what their mentors think is correct, but also what the medical literature and the law has established as unacceptable.

[Matt]

Eric,

The cases you mention with special courts are not "suits at common law", as set forth in the 7th Amendment. Medical malpractice is. Those all stem from statutory schemes alone.

I do agree, though, that a workers comp style system may be where we are headed. But only in conjunction with universal health care. People will not (I hope) give up their right to a jury trial without getting something significant in return. Although considering all those who support tort reform merely on the continually unfulfilled hope of lower insurance rates, I may be wrong.

But as I read the second part of your comment, I see you again trying to shift the burden of reforming medicine on to the legal system, which is not what the legal system is designed to do. Sure there is some deterrence built in to the legal system in the form of punitive damages, but those are so rarely a factor in medical malpractice against an individual physician that they really aren't a factor. That leaves compensating the victim for the harm as the primary goal. I don't see why the jury system (which finds for the physician 75% of the time) should be tossed aside so that the law can determine the baseline of treatment for medicine.

[eric Novack]

Matt- in fact, the system finds for the defense about 80% of the time, and patients receive payments in less than 10% of cases.

Of the payment awarded, upwards of 70% never gets to the injured party.

The vast majority of the time when true medical negligence occurs, there is no compensation at any time.

Please tell me how the current version of the medical liability system benefits patients. Also, please tell me how it meets your stated goal of the system: "That leaves compensating the victim for the harm as the primary goal."

I am not sure what patients would be "giving up" to get a better system. How is 'universal healthcare' directly related to medical liability?

[Matt]

"patients receive payments in less than 10% of cases."

Eric, I'm going to need a source for that claim. Likewise with the claim that 70% of the award doesn't go to the victim. I think you've got your stat wrong there, as I believe you mean 70% of the amount that a med mal case costs. But really, that's irrelevant, because you're not advocating more payments to the victim. You're advocating another hurdle, in the sense of physicians judging their own. What's next, insurance adjusters in bad faith cases getting juries made up of other insurers?

But regardless, you're right, a lot of victims of malpractice aren't compensated. But a lot of then never file suit. Maybe the injury is small and they don't have the time. Maybe it's not worth the money to them. However, you can't say most victims aren't compensated, because you have no idea really how many there are, so to claim there is a majority is silly.

But you haven't shown how special health courts of physicians would make them getting paid any more likely. Nor have you shown why the legal system should come up with a baseline of care when the medical profession won't. In short, before you change the legal system and take away the right to a jury, something sacred enough to be enshrined in the Bill of Rights, the duty is on you to give us a compelling reason.

A star chamber of physicians isn't one.

As for universal health care, that's the only way you will get your workers comp style system. People aren't going to give up the right to a jury trial for nothing. They'll all expect access to medical care at all times in return.

[gmm]

Run do not walk from a WCB no fault system. If you think that there are problems now, there will only be an even bigger problems as you wend through the morass of insurance company layers there will be to go through. No fault, under a WCB like system, means that you give up your right to sue without actually signing it away- it just is, and as an individual you have NO recourse but to accept the tiny bit you get in return for something that may change the course of your life. It does not protect the individual, it only really protects the company- in this case the medical profession. And how on earth as a patient do you fight against a medical establishment? The deck is stacked from the beginning.

Workers comp reforms started to protect individuals and evolved into protecting companies from risk. If the medical field wants protection from the individual, I think that it will be inevitable that the patient will be doubly screwed over.

As well, if you as a medical professional have an excessive amount of unhappy patients your premiums will reflect that to the "nth" degree. Even if you aren't at fault it will count against you in the long run.

Not a professional anything here, just familiar with Workers Comp and the way they affect both the client and the company.

I think it is a bad model to base any trust on.

[Eric Novack]

gmm- I use the WC model as an example of a no-jury system, not as a proposal to solve medical liability.

There are events that are inexcusable-- wrong site surgery, incompatible blood transfusion, transplanting incompatible organs --- we should not need a jury system--- the punishments/ remuneration ought to be swift and appropriate.

Most of medicine is full of gray--- but science and not emotion ought to determine whether the standard of care has been breached, and whether, that breach caused the harm.

A system of health courts would allow science to generally triumph over emotion.

[Matt]

Eric,

Putting aside the fact that you have no idea whether most cases are rightly or wrongly decided and the basis on which they are decided, you've still yet to explain why health courts are necessary to establish a consistent standard of care.

On one hand you talk about the gray area, then on the other hand you say the legal system should make the bright line test.

So I'll ask again - why does the legal system have the burden of reforming medicine? If the advantage of health courts is that physicians will set the standard of care, why don't they just do that now?

So far you've not given a compelling reason to eliminate the right to a jury trial in these cases, enshrined as it is in the Constitution. All you've done is made it the law's responsibility to fix medicine's problems.