Thinking outside the jury box: Another tort reform answer

Some legal and health care observers are proposing health courts as a solution to the medical liability crisis.

By Mike Norbut — Posted Nov. 14, 2005

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Imagine a world where a jury would not decide your fate if you were the target of a malpractice lawsuit. Instead, a judge with medical expertise would rule.

Rather than dueling medical experts, a single court-hired expert would evaluate the evidence against the standard of care. And in place of head-scratching judgments that vary from jury to jury, there would be a consistent schedule of compensation based on the severity and nature of a patient's injury.

These are the concepts driving health courts, an idea some legal and health care observers are pitching as a solution to today's much-maligned medical liability system.

It's an idea many physicians are open to, and it's gaining traction in Congress.

"What we've got now is a broken system," said David A. Ellington, MD, a family physician who is finishing his term as president of the Medical Society of Virginia. "The whole concept of medical justice is an oxymoron."

The health court idea "has great possibilities," though the AMA isn't going to drop its tort reform agenda to pursue it as the sole solution, said AMA President J. Edward Hill, MD. The Association continues to lobby for federal reforms, most notably a $250,000 cap on noneconomic damages in medical liability cases. The AMA also has been involved in developing a health court model, he said.

"Medical courts are certainly worth testing, but when we have a proven solution right now, we should implement that while we're waiting to try to set up the court system," Dr. Hill said.

Physicians complain about frivolous lawsuits driving up defense costs and pressuring innocent doctors to settle. Patients, meanwhile, say it takes far too long to receive the awards they deserve from a judgment in their favor.

Proponents say the health court concept could cure both of these problems. The idea is to design an efficient, consistent system with decisions based on scientific evidence rather than emotion, said Philip K. Howard, chair and founder of Common Good, a bipartisan coalition "dedicated to restoring common sense to American law." That concept starts with the idea of removing a jury from the equation, he said.

"Most malpractice cases turn on standards of care, not on disputed facts," Howard said. "There's far less of a need for a jury than in a fraud case, where you're trying to decide who's telling the truth. Also, the distrust of the court system by providers is so universal that I don't think it's possible to restore that trust without a fairly radical shift."

Seeking pilot status

The idea is gaining some attention on Capitol Hill. Bills that would provide grants to a handful of states to set up pilot health courts have been introduced in the House and Senate. Rep. Mac Thornberry (R, Texas) introduced the House bill, and Sens. Michael Enzi (R, Wyo.) and Max Baucus (D, Mont.) introduced bills in their chamber. The measures have been referred to committees, with hearings expected soon.

Howard said there also is talk of a federal pilot project that would include several large hospital systems, with results reported directly to the Health and Human Services Dept.

Building a health court system might be a novel solution to the medical liability issue, but it's certainly not a new idea for the legal process. Proponents point to other specialized federal courts, such as bankruptcy, tax and patent courts, as well as special administrative courts, as examples of successfully dividing cases according to subject matter. Legislation to create health courts would be written in much the same way, Howard said.

Specialized courts are built on specific rules and procedures designed to move cases expeditiously through the system, said Joe Zumpano, a health care lawyer in Miami and president and managing shareholder of Zumpano Patricios & Winker, P.A. Administrative courts, such as workers' compensation or vaccine liability courts, often have administrative officers with experience in that area presiding over them. Their procedures also are more free-flowing to fit a specific situation, he said.

"A health court would be novel as a new type of special court, but America has a history of special courts," Zumpano said. "When you look at it, health courts can become a reality."

Some opponents say the current mediation opportunities available to doctors and patients satisfy the same goals as the health courts concept, at least in terms of expeditious proceedings and a specialized environment to hear both sides.

Mediation, however, is just a structured negotiation, Howard said.

"It doesn't have the ultimate decision-maker behind it," he said. "You could still go to court."

The Robert Wood Johnson Foundation gave Common Good and the Harvard School of Public Health a $1.5 million grant earlier this year to design a prototype for a new medical injury compensation system, including health courts.

While researchers have designed the nuts and bolts of the concept -- a judge with medical expertise, no jury and a single medical expert -- they're still wrestling with ideas such as standards for compensation amounts and jurisdiction.

One idea researchers have entertained is moving away from the negligence standard. They say that would cause less resentment between physicians and patients during the proceedings. Instead, the court might apply a standard that determines whether an injury could have been avoided with optimal care, said Michelle Mello, PhD, associate professor of health policy and law at the Harvard School of Public Health. By not using negligence as the standard, it might remove the stigma against a physician, she said.

But lowering the threshold for judgment would make more cases eligible for compensation, Dr. Mello said. The trade-off "has to be [that] the average or typical award would be lower," she said.

Fair to patients?

But implementing a system that does not include a jury's decision could create distrust among patients, said Chris Mather, spokeswoman for the Assn. of Trial Lawyers of America. Setting a compensation schedule based on injury and severity doesn't take into account the human aspect of the case, nor how the injury can affect the patient going forward, she said.

Also, she said, juries decide complicated cases every day, and medical liability cases are not any more difficult to understand.

"It does a disservice to the men and women who take the time to sit on juries to say they're not smart enough to hear these cases," Mather said.

Joseph Paduda, a Madison, Conn.-based health care consultant, said medical courts would attempt to address claims frequency and payouts instead of the real root problem to the medical liability legal system, which is high insurance premiums. Setting up "a whole new judicial apparatus" actually might create the idea in patients' minds that medical liability is a societal problem, Paduda said. The existence of special courts could make them think they are victims of medical malpractice when before they wouldn't have considered the thought, he said.

"There's an awful lot of discussion and controversy about medical liability that is a waste of time and energy," Paduda said.

The AMA disagrees with that assessment and points to 20 liability crisis states as examples of a system gone awry. Physicians in crisis states are being forced to retire early, stop seeing high-risk patients or leave their states because liability premiums are increasing at an alarming rate.

"You're at the mercy of what a judge will allow and what a jury will be made to understand," said Robert F. Hamilton, MD, a retired general and vascular surgeon who practiced in Alton, Ill. "It's difficult to go through. That's why many times people settle out of court."

Alton is located in Madison County, which the American Tort Reform Assn. named the nation's No. 1 "judicial hellhole" the past two years, due to the jurisdiction's high lawsuit rate.

Health courts alive overseas

In nations that have a form of a health court system, situations between physicians and patients are not nearly as adversarial as they are in the United States, Dr. Mello said. New Zealand's system, for example, depends on physicians helping their patients file claims. Researchers also are studying systems in countries such as Sweden, Finland and Denmark.

Some countries' systems, though, are nothing more than an administrative process. Proponents of medical courts in the United States are pushing for a court and a judge's ruling, however, because they would have the advantage of being able to develop a centralized database of medical liability decisions. Judges could look to past rulings as guidance, and consistent rulings would help eliminate confusion and provide a framework for patient safety, proponents said.

Written rulings would be easier to appeal as well, Howard said. "It's easy to deal with an incorrect decision when it's sitting there."

A database of decisions from health courts eventually could provide continuity that some physicians say the current liability system lacks.

"What we're looking for is a fair and consistent application of the law," Dr. Ellington said. He said the Medical Society of Virginia would lobby for its state to apply for a grant if Congress passes the pending bills.

"We expect there will be a lot of resistance, but that sort of goes with the territory," Dr. Ellington said. "You hear the trite expression of 'thinking outside the box.' Well, this is outside the box."

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Court prototype

Some elements of a proposed system:

Experienced judge The court would be led by a judge with health care knowledge and expertise.

No jury The judge would hear the evidence and rule.

Single medical expert The court would hire a neutral professional to review the evidence and provide an opinion to the judge.

Case law The judge's ruling would provide a blueprint for future cases heard in health courts.

Efficient proceedings The courts would aim to move cases through the system within months to provide justice quickly for physicians who have been accused and to ensure that injured patients receive compensation in a timely manner.

Compensation schedule Judges would follow a specific schedule of compensation according to the nature and severity of the injury. This would add consistency and predictability to the system.

Source: Common Good

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Following precedent

The United States has a history of successfully establishing specialized courts. Here are some examples of those types of courts:

Administrative courts, which usually have administrative officers presiding, are built on more informal, free-flowing procedures to fit the specific situation. The officers who preside over the proceedings also generally have knowledge of that specific issue.

  • Immigration
  • Social Security
  • Vaccine liability
  • Workers' compensation

Federal courts, which are characterized by their specific rules and procedures, designed to move cases through the system expeditiously.

  • Bankruptcy
  • Drug
  • Maritime
  • Patent
  • Tax

Source: Miami-based health care lawyer Joe Zumpano, and individual court Web sites

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