Malpractice prescription: A healthy dose of health courts

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Some doctors could be trading in their white coats and stethoscopes for black robes and gavels as part of program that would have physicians serve as administrative health judges.
The idea for health courts — or “doctors’ courts” — is the result of three conferences in 2002 and 2003 at the Brookings Institute which focused on the effect that the legal system has on health care costs. The courts would remove juries and use trained health care professionals as consultants, which supporters say would limit frivolous claims and provide quick resolutions to malpractice lawsuits.
“The goal is not merely to bring stability to the medical liability insurance crisis, but to provide a solid legal foundation to promote better and more affordable health care,” said Phillip K. Howard, founder and chairman of Common Good in Legal Affairs, an online magazine. “Justice in health care today is almost random — most people who are injured get no recovery and, in especially tragic circumstances, doctors who did nothing wrong are sometimes liable for millions (of dollars).”
The American Medical Association and The Joint Commission — the main accrediting body for hospitals and health care organizations — both support the proposition. At its annual meeting, the AMA developed principles to govern the courts.

Governing principals

“In some states and medical specialties, sky-high medical liability premiums continue to threaten patient access to medical care,” said William A. Hazel, M.D., an AMA board member. “While we support medical liability reforms patterned after the successful California law that includes a quarter-million-dollar cap on non-economic damages, other proposals should be explored by states as well. Health courts are a promising reform proposal that merits more investigation.”
The AMA principles include structuring the courts with an emphasis on quick resolution; special training or judges, limits to non-economic damages and the use of qualified experts.
The AMA recommends choosing judges for health courts by using a task force made up of four doctors, four lawyers and four community residents. All health courts should be state or local, it said. The task force would determine the training curriculum for the judge, including classroom instruction and an internship.

Not so fast

But some find the idea of special courts to be “ludicrous,” and say removing juries from the process is a mistake.
“I’d say having physicians as jurors in a doctors’ court is as effective as having the ethics committee governing Congress,” said Tom Hooyman, health care ethics professor at Regis University. “It’s the classic fox watching the hen house.”
Claims that jurors are unable to understand the complexities of a medical malpractice suits are equally ridiculous, he said.
“That’s like saying the accounting procedures in the Enron case were too difficult for the average person to understand,” he said. “So, maybe we should have special courts made up of accountants to make sure the right judgment is reached.”
The promise of health courts in lowering malpractice judgments is a “smoke screen,” he said.
“They should be focusing on caps to non-economic judgments,” Hooyman said. “But the trial attorneys want Congress to avoid that, so they’re discussing these ‘Band-Aid’ solutions.”
If the experimental courts merely rely on expert witnesses, then that’s the same system we have now, he said.
“Judges have the full investigative power of the court at their disposal,” Hooyman said. “They’re free to call whoever they want. Those processes are already in place. But these courts remove the jury from the process.”
The issue that needs to be dealt with, he said, is the litigious nature of the health care system. And that should be dealt with head on.
“Capping the awards is one possibility,” Hooyman said. “And they can find other alternatives. But trial attorneys are a huge lobbying force in Congress, and that’s not a popular idea with them.”
Stephanie Mencimer, a contributing editor at Washington Monthly who also is writing a book about tort reform, agrees that removing juries is a mistake. She responded to Howard during a debate at www.legalaffairs.org.
“The facts involved in medical malpractice trials are not any more complicated, nor is the law more arcane, than those currently facing Alabama jurors in the fraud trial of former HealthSouth president Richard Scrushy,” she said. “Yet imagine the public’s reaction to a proposal to abolish juries in CEO trails and replace them with an administrative system staffed by ‘trained business professionals,’ whom we should trust to create predictability in sentencing, deter future wrongdoing and set the standards of corporate behavior.”

AMA Principles for Health Courts

  • Health courts should be structured to create a fair and expeditious system for the resolution of medical liability claims — with a goal of resolving all claims within one year of the filing date.
  • Health court judges should have specialized training in the delivery of medical care that qualifies them for serving on a health court.
  • Negligence should be the minimum threshold for compensation to award damages.
  • Health court judgments should not limit the recovery of economic damages, but non-economic damages should be based on a schedule.
  • Qualified experts should be utilized to assist a health court in reaching a judgment.
  • Health court pilot projects should have a sunset mechanism to ensure that participating physicians, hospitals and insurers do not experience a drastic financial impact based on the new judicial format.

Source: American Medical Association

Mencimer said that if the country trusts juries to allow them to award the death penalty, then juries should be trusted to make decisions about money.
“Worker’s comp and other administrative systems only pass muster because they exchanged jury rights for something substantial in return: a system in which everyone who is injured gets paid, regardless of fault,” she said. “The health courts, as proposed, injured patients still have to prove that the doctor screwed up and that the screw-up was malpractice — but without the aid of a lawyer, their own experts or court-ordered discovery, their fate would lie with a court dominated by the profession responsible for their injuries.”

Possible savior

Some attorneys find the idea of health courts to be an interesting experiment — and a possible savior for doctors and insurance companies.
Greg Pinche, who is the leading health care attorney at Denver’s Holland & Hart office, said the idea is sound.
“On balance, it’s a good idea,” he said. “In our current system, more people are injured than are compensated. The judgments are inconsistent, based on a patchwork of factors — emotional appeal of the case being one of them. There are a lot of costs related to the process — attorney’s fees, other factors involved in the ‘defensive’ practice of medicine.”
The basic idea behind health courts is to have a judge who specializes in health care, with the ability to access consultants who can determine whether damages have occurred. That, Pinche said, is more fair to the doctors involved, and offers easier access.
He cites a pilot program by the Veteran’s Administration that provides full disclosure of all medical errors to patients. The program, available only at a few VA hospitals, involves telling patients about the outcome and has doctors apologize for the problem.
“There have been a larger number of cases from the full disclosures,” he said. “But the amount of the awards has come down. There’s been a net gain in terms of the amount of compensation paid out by the government in this case.”
The courts are worth experimenting with, Pinche said.
“Doctors would not necessarily make the final decisions,” he said. “But the malpractice suits would be handled as an administrative procedure — like bankruptcy courts. Instead of both sides hiring experts, the court would have an independent, neutral expert to help him arrive at the decision.”
Amy.Gillentine@csbj.com