New Ideas in Medical Liability Reform: Health Courts

Today, our guest contributor is Brynna Pietz of Common Good.

Common Good has been a leader in arguing that it isn't enough to simply cap medical malpractice damages and call it reform. Instead, they believe we need to fundamentally change the health care tort system to one that does a better job of more quickly compensating the injured patient--and perhaps more importantly--improving the quality in our health care system.

I believe their work makes a lot of sense.

Here's Brynna's post:

The current medical liability system fails both patients and providers at every level. Malpractice lawsuits are extremely grueling for both sides, dragging on over a number of years and running up hundreds of thousands of dollars in legal and administrative costs. These costs eat up a tremendous portion of settlement payments, with nearly 60% going to cover attorney’s fees and court costs. Yet jury verdicts and awards vary widely and offer no consistent record for what constitutes negligent care, or better, how to avoid future mistakes.

Moreover, according to the Institute of Medicine, the tort system may actually be counterproductive to advancing patient safety and preventing future mistakes. The fear of being sued undermines open communication between physician and patient, an integral component in fostering trust and understanding. Disclosure is essential to facilitating a culture of collaboration and learning among peers, which would serve to improve patient safety and prevent future injuries.

Doctors, lawmakers and patient safety advocates have all stressed the need for reform, but current legislative initiatives, such as capping non-economic damages, provide only a limited solution to a wide-ranging problem. A new approach is needed for medical liability reform – one that fairly compensates injured patients, safeguards against litigation abuse, demands accountability, and promotes quality improvements. Momentum is building around a new proposal calling for the creation of specialized health courts, or administrative compensation systems dedicated to resolving medical liability disputes. Common Good, together with researchers from the Harvard School of Public Health and funding from the Robert Wood Johnson Foundation, is leading the effort to develop and introduce models for health courts.

The distinguishing feature of health courts is the use of specially trained adjudicators in proceedings. These adjudicators would make decisions based on evidence-based practice standards, such as the guidelines disseminated by the Agency for Healthcare Research and Quality. Independent experts retained by the court would provide unbiased testimony on standards of care to assist judges in their decision making.

To encourage predictability and consistency in determining verdicts, non-economic damages could be awarded according to a schedule that takes into account the nature of the injury as well as patient circumstances. There is also the potential to reduce adversarialism, drive adherence to best practices, and broaden the number of patients compensated by employing an alternative standard of liability – “avoidability” already used with success in Scandinavian countries. Under this standard patients would be compensated for injuries caused in the course of treatment that could have been avoided had best practices been followed.

Improving patient safety is a key goal of the health court model. As envisioned, de-identified information from case proceedings would be made available for review at the provider level and fed to patient safety authorities. Thus researchers and providers could examine patterns of errors to understand how to better deliver care and prevent similar injuries from recurring.

Policymakers at the state and federal levels have been working to pass legislation that would provide funding for health court pilot projects. On May 24th, bipartisan legislation was introduced in both the U.S House and Senate that would fund state-based demonstration projects. Several states including Massachusetts and Pennsylvania, have legislation currently pending.

The strong support coming from organizations such as the AARP, Consumers Advancing Patient Safety and the American College of Obstetricians and Gynecologists demonstrates the growing momentum around the health court model. Health courts address the broad failings of the medical liability system in a comprehensive manner – they would expedite compensation, encourage consistency, and support patient safety efforts. Health care is a fundamental issue in America today and fresh ideas are essential to improving access and functionality.