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The Growing Bipartisan Support For Health Courts



October 2nd, 2012
by Philip Howard

The rising cost of America’s health care system – already 18 percent of GDP – is driving the country toward the fiscal brink, and nowhere is the need for a new paradigm to control costs more evident than in the area of medical liability. Doctors’ justified distrust of medical justice (which has an error rate of 25 percent) leads them to prescribe and perform treatments for no other reason than to prevent lawsuits. This “defensive medicine” is estimated to cost anywhere from $45 billion to more than $200 billion a year. Fortunately, a growing bipartisan consensus is pointing the way to a solution.

There is widespread public support for the creation of special health courts. Moreover, despite the highly polarized nature of American politics today, there is consistent support across political parties. A nationwide poll, conducted in April by the Clarus Research Group for Common Good, the nonpartisan organization I chair, revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. Only 25 percent said that those claims should be decided as they are now, and there was virtually no difference between Democrats and Republicans on the issue: 68 percent of Republicans, 67 percent of Democrats, and 61 percent of independents support health courts.

Among the poll’s other findings were the following:
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  • A strong majority of voters – 75 percent – believe that “lawsuits and legal fees are a major cause of high medical insurance rates.” Eighty-nine percent of Republicans, 76 percent of independents and 62 percent of Democrats agree on this.
  • Sixty-eight percent agree that “plenty of good doctors are leaving the practice of medicine because of the number of lawsuits and the cost of liability insurance.” Seventy-eight percent of Republicans, 64 percent of Democrats and 61 percent of independents agree.

This public sentiment may have something to do with the fact that, for the first time in American history, the presidential nominees of both major political parties, Mitt Romney and Barack Obama, have publicly endorsed health courts. Numerous bipartisan commissions have also endorsed the creation of health courts, including the National Commission on Fiscal Responsibility and Reform (commonly known as the Simpson-Bowles Commission); the Committee for a Responsible Federal Budget (at the New America Foundation); the Debt Reduction Task Force of the Bipartisan Policy Center; and Esquire magazine’s Commission to Balance the Federal Budget.

The Ins And Outs Of Health Courts

The concept of health courts originated with and has been championed by Common Good, working in conjunction with experts at the Harvard School of Public Health and with funding from the Robert Wood Johnson Foundation. It emerged both because of the overall error rate of the current system and because the system is not effective for injured patients. It takes an average of five years to resolve a claim, and almost 60 percent of an award goes to lawyers and administrative costs.

Health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely.

As with similar administrative courts that exist in other areas of law – for tax disputes, workers’ compensation and vaccine liability, among others – there would be no juries. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at making medical justice reliably distinguish between good care and bad. They, therefore, hold the key to eliminating the staggering waste of defensive medicine better than any other proposed reform.

While caps on damages limit the scope of awards, they do nothing to protect a blameless doctor from liability. Instead of upholding reasonable standards of care, the current system is an ad hoc process in which one jury could find liability where another jury on the same facts finds no liability. This unreliable system – referred to by one prominent scholar as “an engine of inconsistency” – is why distrust of justice by doctors is nearly universal.

The One Interest Group That Opposes Health Courts

The fascinating question for Washington, DC and the nation is: Will the one, mighty, special interest that opposes health courts – the trial lawyers, who benefit greatly from the current unreliability of medical justice – continue to rule the nation’s capitol on this issue?

So far the trial lawyers are prevailing, with legislation supporting health courts defeated in Congress – but the public is increasingly balking at the staggering and unnecessarily high cost of health care. At some point the public will ask why they have to pay for “defensive medicine”, which serves no purpose other than protecting doctors from a wildly erratic and debilitating system of medical justice.

That point is getting closer. Why, after all, should the public continue to pay for the high cost of something that is totally unnecessary?

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2 Responses to “The Growing Bipartisan Support For Health Courts”

  1. joannedoroshow Says:

    Health courts are vigorously opposed by the consumer rights and patient safety communities. Health courts would force patients into an alternative system without juries, without any accountability mechanisms, without procedural safeguards, and without any meaningful appeals process. These hardships, coupled with the burden of having to prove fault or “causation,” render the injured patient virtually powerless and at the mercy of the insurance and medical industries. Even patients with catastrophic injuries, including the families of brain-damaged babies, would have to fight a “causation” battle to obtain compensation for a potential lifetime of care. Decision-makers would be heavily weighted toward health industry or business representatives, who even might have conflicting financial interests in rejecting or reducing compensation. Some proposals suggests that compensation for injuries would be determined by a benefits “schedule” (so much for a lost leg, so much for an eye) developed by the medical establishment or political appointees instead of decided on a case-by-case basis by a jury.

    The reason this concept has gone nowhere, in addition to the above, is because no one believes health courts would save money, especially if health court proponents are taken at their word. In fact, they would significantly increase costs. For example, in their book Medical Injustice: The Case Against Health Courts (2007), Case Western Reserve professors Maxwell J. Mehlman and Dale A. Nance, noted, “The Republican Policy Committee states, for example: ‘The health court proposal is not about reducing costs overall (since many more people may be compensated at smaller amounts).’” These authors made the following additional observations:

    Health courts “would entail some huge potential increases in total system costs.… If we take health care proponents at their word, their goal is to bring … currently non-claiming people into the process.” This, however “would multiply the number of claims involving negligence by a factor between 33 and 50.”

    “[C]laims involving error account for at least 84 percent of total system costs … so that, even if we assume that only claims involving error are brought into the system, the system costs should increase by a factor of at least 28, all other things (like system efficiency) being equal.”

    “[E]ven if we assume that the average per patient damages under a new system embracing all potential claimants (including those who claim under the existing system) would be only 30 percent of the average damages for claims now paid, that still leaves total direct system costs multiplied by a factor of about 8.5, again as a low end estimate.”

    Health courts involve the creation of a new judicial or administrative bureaucracy. Costs “would certainly be substantial, vastly more than the public (taxpayer borne) judicial costs currently associated with the adjudication of malpractice claims.”

    There are substantial constitutional problems with health court proposals, as well. They are going nowhere.

  2. JohnLynch Says:

    Why, indeed. I just posted a link to this post in the comment to my own post at The Health Care Blog about the need for a more comprehensive approach to medical malpractice reform – one that incorporates both legal and medical reforms that empower patients to assume more meaningful responsibility for their medical choices and thereby reduce physicians’ inherent liability.

    Health courts would fit nicely into the first leg of the three-legged approach I describe in my post. Here’s a link to it:

    http://thehealthcareblog.com/blog/2012/10/01/medical-malpractice-%E2%80%93-what-obamacare-miss/comment-page-1/#comment-278061

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