Health & Human Services

Health Court Advantage

The current system of blame and lawsuits is no way to deal with medical errors.
by | January 2007

Get ready for a medical malpractice crisis. The roiling stock market could drag down earnings on investment portfolios: If it does, insurance companies that issue malpractice policies will suffer investment setbacks, which means they'll be raising their premiums to keep their books in balance. Once they do that, the doctors and hospitals they cover will bang on the doors of their state legislators, demanding relief. They won't be blaming the insurance companies. They'll focus on what they see as the cause of all evil-- malpractice suits. The relief of choice: a cap on the amount of money a patient can recover for non-economic losses in a lawsuit. Physicians in high-risk specialties, such as obstetrics and cardiology, may add to the legislative pressure by threatening to leave the state for a more hospitable one. And that will raise the alarm among patients who fear their doctors will abandon them if lawmakers don't act.

That's not the only scenario for how a "medmal" crisis could get started in your state. There are always the patients (and their trial lawyers) who, with an eye toward making a quick buck, bring a particularly outrageous suit against an upstanding doctor--outrageous because it's based on minor injuries or because a patient isn't happy with the outcome of the treatment. Or a crisis could start with a couple of bad-apple doctors who make egregious mistakes during simple surgery or in delivering a baby, harming or even killing the patient. And those doctors have been allowed to operate despite compiling a record of incompetent care: The medical organizations and regulations set up to weed them out are not effective or are totally ignored.

Whatever the cause, the current system of blame and lawsuits is no way to deal with the issue of medical errors or unfortunate outcomes from sophisticated procedures.

There are better ways. One of them is used successfully in Scandinavian countries and New Zealand. It's time one or two of America's "laboratories of democracy" borrowed a page from another country and piloted a different approach.

The approach in question is called a health court, and here's how it works: Patients bring claims about their care to an administrative panel headed by a judge who specializes in medical matters. The judge has access to a panel of experts in the particular medical area of the claim. There is no jury to weigh the claims or assess the truth. Decisions are made by the judge in consultation with the panel of experts. The standard for bringing a claim is avoidability of injury-- not negligence. Damage schedules specify value ranges for specific kinds of injuries, much like those used in state workers' compensation panels.

Health courts are not unheard of in this country. Both Florida and Virginia use a variation on the system for dealing with neurological injuries. A few states have even introduced health court legislation, namely Maryland, New York and Pennsylvania. And some other states are looking into it, among them Colorado, South Carolina, Wisconsin and Wyoming. So is the U.S. Congress, which is debating a bill that includes a provision for setting up pilot health courts in 10 states.

With a positive attitude on the part of all the players in the medmal problem, this could develop into a healthy trend. It's not only that health courts might be able to bring a more rational approach to a highly emotional and dysfunctional system but also that without the threat of malpractice lawsuits, providers--hospitals, physicians, nursing homes--might be open to reviewing outcomes more openly and with an eye toward improving procedures. Providers would have fewer inhibitions about reporting injuries, and health care institutions could build a database that would show them where errors are occurring and why.

When the Harvard School of Public Health issued a report on health courts ("Health Courts and Accountability for Patient Safety," published last year in the Milbank Quarterly), the authors found the approach worth a try on a pilot basis. As one of them put it, such courts could provide an "alternative that does not lay blame and shame on individual physicians."

The system could also benefit patients--in both the short and long term. Payouts would come quicker--probably within a year. They might be smaller than a jury would award but they would be surer. And there is the hope that a more open, reviewable system would develop, leading to fewer medical errors and fewer instances of harm to patients.

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