Health court proposals under fire

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Administrative health courts are burdensome, expensive and damaging to injured patients.
That’s the conclusion drawn in a report written by two Case Western University professors which describes the concept as “critically flawed.”
The courts, special administrative tribunals for malpractice lawsuits that are modeled after bankruptcy courts, have been endorsed by The Joint Commission, the American Medical Association and The Robert Wood Johnson Foundation, which has provided money for groups to pitch the idea to Congress and set up “temporary” health courts in some states to determine whether the concept works.
According to law.com, the idea is being considered in four states — Illinois, Maryland, Massachusetts and Pennsylvania — through legislation, budget maneuvers or proposed pilot programs.
“The inefficiency of the tort system is costly to society — only about 40 cents of every dollar spent on malpractice insurance goes to compensate injured patients (the rest goes to legal fees, court costs, insurance company administration and other costs),” according to the foundation. “Finally the tort system does not seem to effectively promote patient safety and may actually discourage medical error reporting among health care providers.”
Trained judges with expertise in health court adjudication oversee the malpractice trail in a health court, and make compensation decisions — operating fully outside the legal system. The courts use a broader definition of negligence based on “avoidability” — whether an injury is avoidable according to best practices.

Misleading information

But the information about health courts is misleading, said Dr. Max Mehlman, one of the authors of the report, which was paid for by a grant from the American Association for Justice.
“Health courts are not the best solution to the problem,” he said. “The first thing is that they greatly exaggerate the problem. Once you look at the data, you find that the tort system does a good job separating out weak cases from stronger cases. Juries do a good job sorting through expert testimony.”
The expense of tort cases also has been wildly exaggerated, Mehlman said. In fact, tort costs are only half of 1 percent of total health care costs.
“Medicine is still more of an art than a science,” he said. “The fact is that there is very little evidence-based medicine — only 25 percent of medical practice is support by actual scientific evidence.”
That means that doctors must treat patients on a case-by-case basis — what’s right for one won’t be right for the next patient. And that leads to an expensive system to decide if a patient has been treated negligently.
“The second issue is that the proposal would not solve the problems about negligence,” Mehlman said. “The ‘avoidability’ standard is defined as a broader standard, but it isn’t. They define ‘avoidability’ as something caused by negligence. It doesn’t actually lower the standard and allows more patients to gain settlements for their cases. It’s a fallacy.”
The program sounds good, he said, but it won’t actually cover more patients. And, it’s essentially creating a new bureaucratic system for malpractice decisions.
“You need judges, experts — it’s an elaborate, very expensive process,” Mehlman said.

AMA support

The AMA supports the courts because of the high malpractice insurance premiums that “threaten patient access to care,” said William A. Hazel, an AMA board member. “Health courts are a promising reform proposal that merits more investigation.”
The AMA says the courts should be structured to provide quick resolutions and limits should be set for non-economic damages and the use of qualified experts. The association also recommends choosing judges by creating a task force of doctors, lawyers and community residents.
But Mehlman said the health courts — as currently described — create a dichotomy.
“On one hand, they are saying there’ll be more small claims,” he said. “But they also say they’ll exclude claims unless a person paid $3,000 or more out of pocket. That excludes most people with insurance.”

Bad idea

And Mehlman isn’t the only skeptic. Regis University professor Tom Hooyman said the idea of special courts is “ludicrous.”
“It’s the classic fox watching the hen house,” he said.
Colorado legislators have not yet considered the idea, Hooyman, said, but some nonprofit organizations are examining the concept and are watching pilot programs in other states.
Claims that jurors are unable to understand the complexities of medical malpractice suits are equally ridiculous, he said, and the promise to lower judgments — while at the same time creating more judgments — is a “smoke screen.”
“They should be focusing on caps to non-economic judgments,” Hooyman said.
The courts also plan to pay for themselves using increases to malpractice insurance premiums — which are already high in many states.
“This won’t remove the monkey from the doctor’s back,” he said. “It’s unfair to doctors and patients.”
Amy.Gillentine@csbj.com