This Makes Me Sick

'Health courts' cost, it's just another bureaucracy'

Here's the second part in our piece from resident-provoceteur, Matt. Yesterday he told us why he believes in the American jury system and not health courts. He said he's used to being called a shark, so we obliged with the photo at right.

Back to health courts' cost, it's just another bureaucracy, and we've just added more state employees for a function that no one is able to show our current judges are doing a consistently poor job of handling.  Even the claim that they are necessary to establish standards of care is false - there is literally nothing stopping physicians from doing that now.  They can go to their insurer.

I've often seen Kevin's claim that 40% of claims are unfounded, according to Studdert.  Well of course that's true - they are CLAIMS.  The key is how does the system do when sorting out claims, and on that point, the current system does very well.

As to the counter, from reading in the medical blogosphere, I think that many physicians simply don't like adversarial settings.  That's true of most of us, even most lawyers, but I think physicians in particular are acutely sensitive to it.  Maybe it's the fact that they (like preachers) aren't used to being questioned and very much enjoy being captain of the ship.  I know many don't feel that way, but in general polls show the public very much respects and admires them, and juries certainly defer to them.  But it's the process of reaching the truth in our justice system that they don't like.

'I believe in the American jury system'

When we launched ThisMakesMeSick, we hoped not only to inform our audience about medical liability issues, but also to provide a forum that sparked rants and dialogue and questions and concerns. We know thousands of people check out the site, but we want more reaction and commentary. One avid reader throughout has been a firebrand of sorts named Matt. He offers up regular retorts to our so-called “liability crisis” and drinks from a glass that is most definitely half-full. We asked him to spell out his thoughts on health courts, as he doesn’t seem to have bought into the system. 

I believe in the American jury system.  Nowhere else in the world do you have a situation where people with no conceivable vested stake in the outcome are making the call based on the best case of both sides put before them.  In many inquisitorial systems, popular in Europe, you have one judge as the fact finder.  Imagine that in America, given the influence of lobbyists on our politicians.  And I don't just mean corporate lobbyists, but ATLA as well.  Can you think of something that would more undermine our process?  Even tort reformers are reluctant to attack juries too strongly, but judges?  No restraint for judges - consider the Schaivo rhetoric.

The health courts are nothing more than backdoor damage caps, as I've frequently said.  Take that provision out, and we're not having a discussion about them.  They're dead in the water.  And, they solve neither of the problems identified by the Studdert study - cost and ease of access.  They are still adversarial, and they still require expert witnesses.

Even if one were to stipulate they were easier to access, then that just means you'll have more unmeritorious claims. Lawyers right now, at their own expense, serve as gatekeepers to the system.  To the public's detriment at times, because low cost cases aren't taken, but they do weed out a lot of frivolous cases.  Ask any lawyer how many calls he/she gets a day from someone wanting a million dollars for some ridiculous slight, and they'll regale you with story after story.  I, for one, attribute this to the PR efforts of the tort reformers, who actually have people believing that for little to no injury you can become wealthy quite easily.

More tomorrow on the costs of special health courts.

Some More Frank Talk on Health Courts

We're wrapping up our breakdown of special health courts today. Thanks go out to Common Good for balanced thought on this. For past entries in this series, go here.

Will parties still be able to appeal decisions made by a health court?

Yes, parties will still be able to appeal decisions under the health court system. Review board decisions will be appealed to health courts, and health court decisions will be appealed to federal health court appellate bodies.

How will we ensure health courts remain independent and free from political influence?

Any dispute resolution can be susceptible to political influence, but proper design will ensure that health courts remain independent. For example, bipartisan committees can appoint health court review board members and judges. Appointment, rather than election, the method by which many state trial court judges are currently selected, and longer tenure for health court judges can also help insulate them from politics.

Who supports the health courts concept?

A wide variety of organizations, leaders, and publications have endorsed the health court concept, including several state medical societies, provider organizations, consumer groups, business groups, think tanks, and legislators in Congress and at the state level. Support for health courts is bipartisan. Both the Democratic Leadership Committee and the Senate Republican Policy Committee have endorsed the concept. For a list of individual endorsements, click here. For a list of organizational and media endorsements, click here. To see the results of our national poll on health courts, click here.

At the federal level, there are bills in both the U.S. Senate and the House to create pilot health court projects. Health courts bills have been introduced in several states by state legislators on both sides of the political aisle. For a more information on recent legislative activity, click here.

Bye, Bye Jury trial?

How will health courts better serve health care providers than the current tort system?

Both patients and providers will benefit in several ways from the health court system. Providers will know what the appropriate standard of care is because health court judges will write opinions that set precedent clarifying the standard of care. Without undue fear of lawsuits, there will be a greater sharing of information between providers that will improve patient safety and the quality of care. In addition, more consistent and reliable judgments will eventually mean lower medical malpractice premiums, meaning that more providers will be able to afford practicing, increasing access to care.

Do health courts abridge the right to a jury trial? Do they abridge the right to due process?

Congress has broad powers to authorize pilots for specialized health tribunals under the Spending Clause and under the Commerce Clause, because medical injury litigation is economic activity that is in and affects interstate commerce. [See South Dakota v. Dole, 483 U.S. 203 (1987); Gonzales v. Raich, 125 S.Ct. 2195 (2005); United States v. Lopez, 514 U.S. 549 (1995)]. Contrary provisions of state law, if any, would be pre-empted under the Supremacy Clause. [See Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984); Pennsylvania v. Nelson, 350 U.S. 497 (1956)]. Moreover, similar federal administrative compensation systems have been upheld against constitutional challenge. [See Colaio v. Feinberg, 262 F. Supp. 2d 273 (S.D.N.Y. 2003), aff'd Schneider v. Feinberg, 345 F.3d 135 (2d Cir. 2003)]. State constitutions vary, but do not likely preclude the development of health courts so long as they provide an adequate substitute remedy for patients.

More on Monday. In the meantime, check out Common Good for more info.

Health Courts: Will Patients Be Heard?

Under health courts, will it be easier or harder for injured patients to file claims and receive compensation?

Health courts will make it easier for patients to file claims as logistical and economic barriers are lowered. Specialized courts will be more efficient at processing medical injury claims, lowering administrative costs and requiring less attorney time.

What standard will be used to determine whether injured patients receive compensation? How does the avoidability standard differ from negligence?

Under the health court system, injured patients will be compensated using a liberalized standard known as “avoidability.” Under this standard, injuries will be compensated if they were caused by treatment (or the lack of treatment) and they could have been avoided if best practices had been followed. Avoidability represents a more expansive standard of liability than negligence, and could help to expand access to compensation for injured patients. More importantly, it will help improve patient safety and quality of care because it reduces the emphasis on individual fault and acknowledges the role of system failures in contributing to injuries.

The Health Court Model vs. "Tort Reform”

Health Courts, Chapter #3.  By Common Good. Also, read #1 and #2.

Unlike many traditional tort reforms, creating health courts would address the root problems with the current medical justice system – unreliability, compensation for few injured patients, and patient safety. 

4) How will health courts work in practice?

The outlines of a health court can vary, but the basic components are very straightforward.  The hallmark of health courts are judges with medical training dedicated full-time to resolving healthcare disputes. They will issue written rulings in every case to provide guidance on proper standards of care. These rulings will provide guidance for future cases on which both doctors and patients can rely.  Health court judges will have the authority to hire neutral experts, instead of the competing experts-for-hire who now confuse and prolong malpractice cases, not to mention drive up costs.  Judges will award non-economic damages (over and above medical costs and lost wages) in accordance with a schedule of benefits that will provide predetermined amounts for specific types of injuries and taking into account patient circumstances. As with similar administrative courts that already exist in other areas of law – for tax disputes, workers’ compensation, and vaccine liability, among others – there will be no juries. To assure uniformity and predictability, each ruling can be appealed to a new Medical Appellate Court.

To reduce legal fees and the emotional toil, proceedings will be expedited, so that injured patients will keep more of any award.  Patients will still have their own lawyers, but the fees will be less than they are today because the cases will take months, not years.

Tomorrow: Will health courts cost more than the current system?

Health Courts: What are they good for?

Thanks to Common Good for this second part in our breakdown of health courts.

The current system of medical justice fails both patients and providers, and needs comprehensive reform. It is unpredictable, emotionally wrenching, and staggeringly inefficient. Under the current system, most patients who are harmed by medical errors get no compensation at all. A recent study by Professor David Studdert et al. at the Harvard School of Public Health found that of the malpractice claims analyzed, one in six claims was an unpaid error. The study also found that those who are compensated endure and average of five years of litigation and see more than half of their awards spent on overhead costs. According to the study, for every dollar paid in compensation to plaintiffs, 54 cents go to overhead, a rate much higher than other compensation schemes such as workers compensation, in which overhead costs amount to roughly 20-30% of costs. Not only are lawyers compensated to a greater extent than injured patients, but the lawsuits go on for years. The high costs and lengthy process also prevents some patients from seeking redress through the tort system as many lawyers will not take cases unless they see the potential for a lucrative win. It’s simply not worth their time otherwise.

What is a health court?

We've been talking about health courts for awhile now and it seemed a perfect time to let everyone know exactly what they are and how they would deal with medical liability cases. Each day we will breakdown these courts, thanks to Common Good.

Health courts are special courts to handle medical injury disputes.  The national advocacy organization Common Good has been working with the Harvard School of Public Health on a project supported by the Robert Wood Johnson Foundation to develop a conceptual proposal for a new system of health courts. Under the evolving proposal, trained judges assisted by independent, neutral experts will make decisions about the standard of care.  As judges issue opinions, a body of law will develop to delineate clear and consistent standards of care.  In addition to full economic damages, injured patients will receive non-economic damages according to a compensation schedule based on patient circumstances and severity of injury.

Next up: Why do we need health courts?

The Senate Talks Health Courts

We're pleased to spread the word about some action in the Senate. Forget the dead-in-the-water, social wedge issues. We're talking bi-partisan legislation that would create pilot projects for special health courts.  The bill (S.1337), known as the Fair and Reliable Medical Justice Act, has been introduced by Senators Michael Enzi (R-WY) and Max Baucus (D-MT).  The purpose of the bill is to restore fairness and reliability to the medical justice system by fostering alternatives to current medical tort litigation, including the creation of special healthcare courts, that promote early disclosure of health care errors and provide prompt, fair, and reasonable compensation to patients who are injured by healthcare errors.  Read more about the bill here.

Common Good—one of our strongest partners since we launched in 2005—is developing models for expert health courts based on research conducted at The Harvard School of Public Health and funded by The Robert Wood Johnson Foundation.  Read more about the project here.  View the health court brochure here.

Support for health courts has been increasing every day, but Common Good needs your help.  Get the word out: 

1.         Send a note to your senators, especially if they are on the Health Committee.  Download a draft letter here in PDF or Word document format.  Click here to find the contact information for your Senator.  Click here to find out if your Senator is on the Health Committee.

2.         Notify your colleagues and friends by e-mail or fax and ask them to send letters to their senators.  Click on the envelope icon on the top right of the page to email this page.

Nice work, Common Good.

Let the discourse commence

As 2006 gains steam, so does the passion regarding America’s medical liability crisis. Facts and figures are flying. Thankfully, the arguments here are centered and civil. Guest blogger Eric Novack brought up his support for special health courts, which our friends at Common Good have been championing across the country. Eric’s post ushered in some pointed thoughts from a reader who asked: "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?” A lively back and forth ensued. Read it here.

If you read something on TMMS that makes you sick. Or fired up. Or conjures up a memorable experience, let us know. This is your forum to change the system.