An alternative to jury based malpractice decisions and a potential solution to the malpractice crisis
If you have been reading my blog for a while, you may remember a discussion of a bipartisan bill which proposed a Federal Health Court System. I couched that discussion in terms of, at that time, recent 2004 elections which added to health-related amendments to the Florida state constitution. If you are interested in those amendments or the context of the original discussion, read the post here.
"....only 2% of patients injured by negligent care ever file a malpractice claim and the current malpractice system only compensates 1 in 14 people. These low odds and the lack of precedent cause attorneys to adopt a strategy of swamping the courts with malpractice claims, 4 out of 5 of which are found to be invalid. A system of standards for awards and for care would greatly reduce frivolous suits and would allow attorneys, patients, and physicians to modify their practices and behavior accordingly.
There is a solution to these problems that would be in complete alignment with Amendment 3 and Amendment 8. The Progressive Policy Institute, among others, proposes a system of health courts for liability claims and written standards of liability settlement that would function similar to the workers compensation claims process operated by the Board of Labor.
The most striking and revolutionary changes that would follow the health court system would be a shift from designating blame to a particular physician into assigning a process of blame to a team, group, or institution. Furthermore, and maybe most controversial, the system would end jury awards for malpractice and would rely on written standards to dispense benefits.
The basic tenants of the Progressive Policy Institute proposed Health Court system include (1) replacing civil courts with health courts to hear liability claims (similar to specialized tax courts), (2)creating a written standard of accelerated compensation events (ACEs) of common medical mistakes and errors (e.g. bleeding after colon surgery requiring an additional surgery) that would detail a benefit schedule that could be included with lost wages and direct economic damages, (3) ability for patients to directly file liability claims with the health care provider or hospital, (4) a local board that would review injury claims and determine if they meet ACE designation or if they require further judafication, (5) a system of state and federal health care boards with mixed funding at each level, (6) the establishment of additional ACEs and benefit standards determined by written case law (7) experts will be paid and obtained by the court and board, not by the attorneys from either side, (8)the ability to monitor truly negligent hospitals and institutions over time and (9) use of evidence based medicine to establish a standards board for practicing physicians.
The benefits of this system are that physicians will have a clear idea of what constitutes malpractice and liable behavior because their will be a written set of standards developed from court rulings. This will decrease overall health care expenses by decreasing the practice of “defensive medicine” which is common among physicians (an over abundance of tests are ordered to cover liability). Furthermore, all patients will have access and ability to pursue injury claims in a similar manner in which they already pursue worker’s compensation claims. In addition, the hiring of experts by the court will reduce attorney fees significantly making it easier for low-income individuals to obtain representation. Also, juries should not be in the business of deciding law, they should be focused on deciding fact. However, the unclear precedents in current malpractice suits make it so that the jury focuses their efforts on deciding law since there are no clear standards of care. It is quite possible that two people suffering identical injuries will receive very different awards simply based on the jury they receive. A physician faces the same fate at the mercy of an assembled jury. Health Courts remove juries from these decisions and allow clear expectations and standards to develop over time.
The Progressive Policy Institute has also outlined a number of potential objections to this system. The objections will likely come from attorneys for two reasons – (1) citizens have the right to a jury trial and (2) malpractice attorneys could suffer decreased compensation and less demand for services. However, the workers compensation model is ideal for demonstrating that it is possible to settle liability claims without a jury. Furthermore, if only 2% of malpractice injury claims are pursued at present, and only 1 in 14 of those receive an award, attorneys may be able to find compensation simply by the increased frequency of malpractice cases they will be able to take on.
One other potential problem is that large jury awards have been significant for increasing reform in other industries. For example, tobacco lawsuits resulted in billions of dollars in jury awards that threatened tobacco companies and resulted in significant modifications within their industry and an increase in positive health outcomes among the community. However, the large jury awards are not useful in altering physician behavior or hospital practices. Since there are no clear standards in place, it is not possible that a systematic practice of negligent and liable behavior is occurring. In other words, there is no behavior to deter by these awards. As a matter of fact, the large awards are linked to increased health care costs due to the practice of defensive medicine and high insurance rates.
........By enacting a short-term 1% increase in malpractice premiums, a much larger decrease could be expected in the following years. The 1% increase can be used to set up a state Health court, as well as local boards that create ACEs and review claims. Once the system is launched, necessary attorney fees will drastically decrease as neutral experts are hired by the state, not the legal team. In this scenario, injured claimants would certainly recover 30%, or more, of their first $250,000 in non-economic damages. Furthermore, a state board would be created with the ability to monitor negligence and malpractice among individual physicians and hospitals...... It is possible that even with the significant reduction in attorney’s fees and the elimination of unfair jury awards, malpractice premiums may not decrease. At that point, the state should explore insurance reform, similar to the MIRCA in California to ensure that we maintain a population of specialist physicians in the state. In the immediate future, a state Health Court would allow us to address numerous problems now posed to us by the liability crisis. Furthermore, we would create the necessary infrastructure that goes beyond putting a band-aid on a gushing wound, allowing us to plan for adequate delivery of health care services now and in the future."
- My original post about health courts and new Florida law
- Professor Michelle Mello, Harvard School of Public Health, Audio File
- Progressive Policy Institute Article on Health Courts
- Common Good Explanation of Health Courts