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Experts Praise Health Courts as Alternative to Malpractice Tort System, but Critics Remain

By Laura Blinkhorn, CQ Staff

November 9, 2006 -- The current system of resolving medical malpractice through tort claims is burdensome for patients, terrifying for doctors, and expensive for the health care system, experts agreed this week. What to do about it, however, proved a much more difficult question.

At an event co-hosted by Common Good and the Harvard School of Public Health and sponsored by the Robert Wood Johnson Foundation on Wednesday, panels of academics, policymakers, and lawyers discussed the proposal of establishing specialized "health courts" that would arbitrate malpractice claims.

In the proposal, all medical injury disputes would be referred to health courts presided over by judges with expertise in medical issues. The courts would rely on neutral experts in deciding malpractice claims, rather than the current system where each side brings in experts. The current standard of "negligence" would be replaced by a broader standard of "avoidability." The courts also would use evidence-based guidelines to help decide cases and award damages based on compensation schedules.

Deterrence of medical errors—as well as compensation for the harmed patient—should be the aim of malpractice procedures, argued Michelle Mello, assistant professor of health policy and law at the Harvard School of Public Health, who pitched the proposal.

"But the tort system has generally failed in its deterrence function," she said. Health courts would establish a "culture of safety and a science of safety," she suggested.

David Studdert, associate professor of law and public health at the Harvard School of Public Health, examined similar programs in Sweden, Denmark, and New Zealand. He found that those systems allowed for more transparency in the health system. The collection of claims data in a centralized database allowed for analysis and correction of systemic problems. Data on malpractice in the U.S. is skewed, he argued, because usually only the most catastrophic errors are brought to court.

He called the current system "a weird way of looking at causality," because it focuses on a single actor rather than faulty systems and data.

Legal experts discussed the constitutionality of the proposal and concluded that it would be possible, citing examples of specialized courts that arbitrate labor and environmental disputes. Panel moderator David Kendall of the Progressive Policy Institute argued that "nothing can happen at the federal level if nothing is happening at the state level."

Other panelists and audience members raised concerns about the proposal. Jack McCarthy, president of the Risk Management Foundation, argued that "expanding the base of liability will be unacceptable to insurers." An audience member from the Consumers Union argued that the proposal "takes away the right to have one's day in court," while "creating a huge bureaucracy."

Another panel discussed the likelihood of medical malpractice reform in light of the Democratic takeover of the House and Senate.

"Caps are likely to be off the table," said Stephen Northrup, a staffer for the Senate Health, Education, Labor and Pensions Committee, referring to the Republican-favored idea of setting caps on medical malpractice claims. He said there would have to be incremental change with involvement at both the federal and state level.

He cited a legislative proposal offered in the 109th Congress, which might be brought up again in the 110th. A bill (S 1337) co-sponsored by Sen. Michael B. Enzi, R-Wyo., and Sen. Max Baucus, D-Mont., 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.

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