Why health courts could pick up steam

January 4, 2008

There's more to be gained from averting serious medical errors than from fighting in court.

A new year, a fresh start. Perhaps 2008 will be the year for real progress in resolving the malpractice crisis.

The public is slowly getting the message that stratospheric malpractice premiums ultimately harm them too, as good doctors flee certain states and drop important procedures.

One alternative, health courts, makes a lot of sense, but its forward momentum rivals that of Sisyphus. With health courts, compensation judgments would be made outside the regular tort system. Specially trained judges would make decisions on an avoidability standard. Injuries would be compensated if they could have been avoided with best practice care. Negligence, by contrast, focuses on whether care fell below customary practice.

That means no more juries making mega-awards based on sympathy for the plaintiff. Health experts would award compensation based on uniform guidelines.

The lack of progress isn't for lack of effort. Two separate bills were introduced in 2005 at the federal level and, most recently, a bill presented in New York in 2007 would provide for a health court pilot program in five counties. Other states have also introduced bills proposing alternatives to our current system.

Where's the beef?

Lots of smoke, but still no fire. The bills are introduced with great fanfare, then vanish. Through benign or active neglect on the part of the legislature, health court bills don't get put up for a vote.

Politically, health courts are a tough sell. First, the potential benefit to consumers isn't readily clear to them. Plaintiffs could end up with less money-much less, in some cases.

Second, the legal lobby has teeth. Many legislators are attorneys, and know that if they lose the next election, they'll be dusting off their resumes. Supporting legislation that vanquishes a source of trial lawyers' income could be a suicidal career move.

Still, the "what's in it for me?" consumer angle may become more obvious. The proposed system is now being paired with a focus on collecting and using data to improve patient safety and hammer out guidelines about patient compensation. That could make the concept of health courts more appealing to the public.

In addition, their cases would be easier to file; decided with greater speed and reliability; and entail less administrative overhead. This could potentially lower their healthcare costs. And doctors may not need to practice as much defensive medicine.

Health courts would encompass a no-fault system that encourages physicians to report medical errors without fear of lawsuits or retribution. The reporting would enable people to identify and correct workplace and system deficiencies, so that the same types of errors don't recur.

Another plus: The public has become more aware of the connection between patient safety, quality, and medical liability, says Paul Barringer, executive director of Common Good ( http://www.cgood.org), which is leading the charge for health courts. As such, support for health courts will probably come from a grass roots movement, rather than a top-down edict. Barringer believes change is more likely to come as small state pilot programs like the one in New York prove their mettle and build up critical mass, attracting more backers. But first, more health court bills need to see the light of day.

Although huge awards might become scarcer in the future, consumers and doctors would benefit more from averting serious medical errors than from fighting in court to try to salvage a wrecked life.