Senate weighs alternatives to medical liability system

Physicians, lawyers and patient advocacy groups are wrangling over a bill that would test health courts and other ways to help curb rising medical liability costs, while aiming to treat both physicians and patients fairly.

The Fair and Reliable Medical Justice Act would authorize the Dept. of Health and Human Services to fund state pilot projects for three alternatives to resolve medical liability claims outside the current court system. The debate came during a June 22 Senate Health, Education, Labor and Pensions Committee hearing held on the measure, sponsored by committee Chair Sen. Michael B. Enzi (R, Wyo.).

The approaches that would be studied are early disclosure and compensation, in which a doctor would offer to compensate the injured patient; administrative determination of compensation, in which a state board would settle claims; and health courts, in which specially trained judges, rather than juries, would hear cases. Under all three systems, noneconomic awards would be paid according to a monetary schedule.

While the medical liability debate persists on Capitol Hill, "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 said.

Doctor groups stressed that their priority remains federal reforms that include a $250,000 cap on noneconomic damages, but they endorsed the bill as one that could help eliminate the threat of excessive litigation. The current legal system can lead to defensive medicine and an erosion of the doctor-patient relationship, they said.

The American Medical Association said the ideas will require rigorous research but potentially could cut the number of meritless cases, high jury awards and the burden of legal costs.

"The merits of liability claims would be determined on a more consistent basis, tempering the unpredictable nature of our current medical liability system," the AMA said in its testimony to the panel. Organized medicine cautioned, however, that the models should ensure that existing peer review and quality improvement protections are not jeopardized.

The American College of Obstetricians and Gynecologists, whose members often pay some of the country's highest medical liability premiums, supported the health court model as a way to more accurately assess standards of care. "When it comes to medical care, civil courts do a poor job of distinguishing between negligence and non-negligence, or between poor and good care," ACOG noted.

Ultimately, patient care is harmed by litigation, doctors say. Alternative systems could foster more open communication and improved patient safety, they said.

Arguing for jury trials

Opponents, on the other hand, heavily criticized the models as denying patients their right to a jury trial and fair compensation for their injuries.

The American Bar Assn. criticized the involuntary nature of the pilot projects, which attorneys say give patients little recourse. "Injured patients are forced to give up the right to bring an action in court with no guarantee of an award," said Cheryl Niro, a member of the ABA's committee on medical professional liability.

Uniform payment scales, she added, would treat all patients with similar injuries the same, instead of according to the unique circumstances of their individual cases.

The Center for Justice and Democracy, a nonprofit organization opposed to tort reforms favored by doctors, also denounced the schedules. Payment scales "in reality act as the kind of damage cap that a number of state courts have found unconstitutional," the group said.

Problems with resolving medical liability claims are better addressed through patient-safety measures, such as collecting more information on medical errors, the center said.

Questions lingered on both sides on exactly how the new approaches would work -- who would determine award schedules, who would screen special judges and expert witnesses, and whether patients would be entitled to a discovery process to review hospital records for use as evidence.

Willing guinea pigs

Meanwhile, the Common Good, a bipartisan coalition that developed the health court concept with the Harvard School of Public Health, announced at the hearing that six university hospitals had expressed an interest in participating in a health court demonstration project. The hospitals are Duke University Medical Center in Durham, N.C.; Emory University Hospital in Atlanta; Jackson Health System at the University of Miami; Johns Hopkins Medical Institutions in Baltimore; New York-Presbyterian Hospital; and Yale-New Haven Hospital in New Haven, Conn.

Lawyer Philip K. Howard, chair of the Common Good, pointed to a number of other specialty courts, such as administrative, bankruptcy and tax courts, incorporated into the legal system to deal with complex issues.

Health courts, Howard said, could serve doctors and patients in much the same way. "Doctors need to believe that a dispute will be resolved based on accepted standards of effective health care. Patients need a system that can ... do so without an agonizing five-year process."