Analysis: See you in health court?

By OLGA PIERCE, UPI Health Business Correspondent

WASHINGTON, July 7 (UPI) -- Bankruptcy cases are referred to bankruptcy court. Labor disputes are settled before a special labor court. Now, a growing chorus of voices is calling for the establishment of a health court with jurisdiction over medical malpractice cases.

Proponents of such a plan say it will ease doctors' concerns about lawsuits and help patients get fair compensation in a timely way. They also say that judges with expertise could set clear medical procedural guidelines that could improve the practice of medicine.


Groups opposed to health courts say they would limit patients' rights by impinging on their ability to seek damages from doctors who injured them.

"Healthcare is suffering a kind of nervous breakdown," Philip Howard, chairman of Common Good, a bipartisan group that works on legal issues, told United Press International. "We need a system of justice reliable enough to uphold choices about what's good care."


The group has brought together experts spanning the political spectrum from former Republican House Speaker Newt Gingrich to former democratic presidential nominee George McGovern in calling for the establishment of special health courts. It also has powerful allies like the AARP and the Partnership for Patient Safety.

In the current system, Howard said, juries are treated to the spectacle of opposing experts, given unclear legal instructions, and then sent off to decide on enormous awards.

The result is a system that is time-consuming and expensive, where only a small fraction of patients injured ever get their day in court, he said, and doctors do more than is necessary to avoid being sued over a bad outcome they could not have prevented.

In a special health court, on the other hand, decisions would be made by a judge with expertise in healthcare, and experts would be on the court's payroll "so they can say what they really think," Howard said.

At the end, the judge's ruling would become a new standard of care. All doctors who provided care to patients up to that standard would be able to rest assured that they would not be subject to a large judgment against them -- regardless of poor patient outcomes.


Non-economic damages -- which include the oft-maligned, multimillion dollar "pain and suffering" awards, would be granted according to a schedule that would apply to all patients.

Once a standard of care was established, most patients who were victims of provider negligence could simply receive apologies and settlements through administrative procedures without ever having to hire lawyers or go to court.

"The goal is not only to make justice more reliable," Common Good General Counsel Paul Barringer told UPI. "The goal is to improve the practice of medicine.

The clear guidelines established by health courts would also help providers move "toward patient safety and away from wasteful practices," he said.

"We have to restore trust in the system."

In order for health courts to become reality, they require legislative sanction -- and such sanction could be on its way.

Several states, including Pennsylvania, Maryland and New Jersey, are in discussions about launching pilot courts in some jurisdictions.

A bill in the Senate, sponsored by Michael Enzi, R-Wyo., and Max Baucus, D-Mont., to authorize and fund pilot health courts was the subject of a committee hearing last week. A similar bill, already introduced in the House, will likely be the subject of a hearing next week.


Six well-regarded hospitals have volunteered to be the sites of future pilot projects.

But such a measure faces stiff opposition from two powerful constituencies: lawyers and doctors.

At the Senate hearing, Association of Trial Lawyers of America President Ken Suggs said there are better ways to address the problem of medical malpractice -- including focusing on reducing physician errors and arbitration.

"The health court proposals that feature a pre-determined schedule of damages represent nothing short of a backdoor attempt at implementing caps, a one-size-fits-all solution that runs counter to the best interests of patients who suffer painful injuries through no fault of their own," Suggs said.

For its part, the American Medical Association has largely focused its attention on securing caps on malpractice damages.

The next presidential election could be where significant progress is made toward health courts, David Kendall, senior fellow for health policy at the Progressive Policy Institute, told UPI. The institute has also come out in support of health courts.

"What will really drive this issue ultimately will be the problem of rising healthcare costs," Kendall said. "That's where the average American voter really engages.

"If the public gives political leaders permission to look at how wasteful healthcare is, health courts will be a part of that discussion."


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