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Enzi Casts Wider Net for Solutions to Malpractice Compensation Woes

June 22, 2006 -- The congressional debate over changing the nation's troubled medical malpractice system widened Thursday with a Senate hearing on alternatives to caps on damage awards, a proposed solution that has repeatedly been rejected by the Senate. While specialized "health courts" attracted much attention at the hearing, witnesses were divided on their merits and no consensus emerged in support of any one alternative approach.

Sen. Michael B. Enzi, R-Wyo., who chaired the Senate Health, Education, Labor and Pensions Committee hearing, aims to parlay that lack of unanimity on how to proceed into support for a bill he has introduced with Sen. Max Baucus, D-Mont., to test various approaches to addressing the problems of soaring malpractice premiums, slow or no compensation of injured patients, and the ordering of unnecessary tests and procedures to protect against lawsuits.

"While we continue to debate in Washington, we ought to lend a hand to states and encourage them to create alternatives that would be more fair and predictable for both patients and health care providers," Enzi, who also is committee chairman, said in his opening statement at the hearing.

The Enzi/Baucus bill (S 1337) would authorize grants to the states to carry out pilot programs testing three approaches: health courts, awards by state administrative boards, or "early disclosure and compensation" programs in which providers are given immunity from lawsuits in return for speedy compensation of an injured patient.

Although pilot programs testing health courts have attracted growing support—including from a number of prestigious figures and organizations in health care—they also are strongly opposed by the American Trial Lawyer Association, a major source of funding for Democratic Party candidates, as well as by some consumer organizations and the American Bar Association.

Both ATLA and the ABA oppose health courts on grounds that they would deny injured patients access to a jury trial. That right is important, Sen. Edward M. Kennedy, D-Mass., emphasized at the hearing because it ensures that those injured get a fair hearing when they are up against wealthy and powerful corporations. Without the possibility of a jury trial, there would be no settlement offers in many cases, Kennedy said.

Kennedy added that patients must have a "genuine choice" between getting their day in traditional court and alternative forms of hearing disputes, a statement that raised the question whether he might be open to health courts that were optional rather than mandatory.

Sen. John Cornyn, R-Texas, appearing as a witness at the hearing, expressed strong support for the pilot tests of health courts, saying he hopes to soon introduce legislation to fund those experiments. Cornyn indicated that the test would preserve the patient's option of going to regular court—an approach that at least suggested the possibility of attracting the support of a few Democrats.

Harvard School of Public Health professor David Studdert said there are many unknowns with health courts but asserted that they have "tremendous promise." The courts would have full-time judges dedicated solely to addressing health care cases. Judges would be able to choose from a neutral panel of experts in each area of medicine, avoiding the dueling "hired gun" experts that confuse and prolong disputes today, according to Common Good, a New York City–based organization that advocates health courts.

Most cases would be resolved within months, and legal fees would be capped at 20 percent of awards except in exceptional cases. Recovery of awards by injured patients would be automatic once a mistake was verified, without the need to prove precisely how an error occurred.

Patients would be reimbursed for all of their medical costs and lost income, plus a fixed sum that would be set according to a schedule addressing specific types of injuries. A panel of experts would decide and update payment amounts in the schedule.

Philip Howard, the founder of Common Good, told the hearing that the schedule of payment amounts, an approach followed in other countries, "dramatically turns down the heat in the process," easing mistrust between physicians and patients, speeding compensation, and making it available to a larger number of injured patients.

Howard said he understands the reluctance to change from the current jury system people are used to but that the new system wouldn't get rid of the right to sue, rather it would change it.

Among the organizations willing to participate in a pilot program testing health courts are the Duke University medical system, the Johns Hopkins University medical system and the Yale-New Haven Hospital and medical group. Kenneth Kizer, former president of the National Quality Forum, and Margaret O'Kane, president of the National Committee for Quality Assurance, also support health courts, as does the Progressive Policy Institute, a source of policy ideas in the 1990s for the centrist New Democrats.

The American Medical Association said health courts and other alternative models would have to be thoroughly tested but said they could reduce meritless claims and lower costs associated with litigation.

But Cheryl Niro, speaking on behalf of the American Bar Association, said "injured patients would be forced to give up their right to a jury trial" if health courts are adopted. "The schedule of awards is a de facto cap on non-economic damages and, for that reason, could well be found unconstitutional," she said.

Niro added that the ability of judges to fashion awards based on the unique circumstances of each case would be lost. Neil Vidmar, professor at the Duke University School of Law, also likened the schedule of payments to caps, which he said discriminate against the most severely injured patients, as well as women, children, and the elderly. He too emphasized that the jury system provides individualized justice under the law.

Richard Boothman, chief risk officer at the University of Michigan Health System, suggested a different approach than health courts. "I don't believe that the system needs radical change," he said. "I do believe it needs some changing."

The problems with the current system are stubborn ones because the medical profession concentrates so heavily on the legal profession, he said. Providers do not pay attention to their own complicity in current problems, he added. By openly admitting to patients that they've been harmed by medical errors, and promptly compensating them for those errors, many suits can be avoided, he said. The University of Michigan health system has seen a dramatic reduction in claims pay outs by following such a system, he said. Sens. Hillary Rodham Clinton, D-N.Y., and Barack Obama, D-Ill., have offered legislation (S 1784) to promote wider use of the University of Michigan approach.

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