Lawyers

We Need Special Health Courts.

By Chris Rangel MD ⋅ July 3, 2006 ⋅  Email this post ⋅  Print this post ⋅ Post a comment

A reform proposal for the current medical liability system.

The recent Harvard School of Health study by professor David Studdert reviewed 1,452 closed malpractice claims and found that there is no evidence that frivolous suits are flooding the system. However it also found that over a third of the cases (37%) involving injury did not result from medical errors or malpractice and of these 28% (10% of the total) still resulted in payment to the plaintiff. Trial lawyers crowed about the results saying that the system “works” to weed out baseless claims. Yet, this spin left many of us confused. Are they saying that a 10% failure rate is a good thing? Worse yet, the system failed to compensate 27% of those cases that DID involve malpractice/errors meaning that in all, justice was denied in 20% of all cases.

The other conclusions of this study were even more damming of the current tort system. The study found that it takes on average 5 years for an injured party to receive compensation and that legal and administrative costs consume up to 50% of compensation amounts. To spin this study as proof of a successful tort system as the trial lawyers do is akin to the Black Knight’s spin about his severed arm, “It’s only a flesh wound!”

KevinMD points out that Dr. Studdert himself in his comments to the Senate believes that it is “wrong” to think that the current medical liability system “works”. Studdert references other research that shows that the majority of patients who are injured as a result of errors never seek compensation within the system. More than likely this is because of the enormous time, effort, and costs involved as well as problems with access and a general public lack of knowledge about the system.

Other problems that are mentioned by Studdert are how the current system impacts health care by inducing physicians to practice defensive medicine and because the system is so adversarial and punitive it hinders efforts to improve quality by acting as a big disincentive to the disclosure of errors. I.e. the current medical malpractice liability system focuses on the compensation of single cases and not on the medical system itself or potential inherent errors in the delivery of medical care.

Studdert proposes the following; make the medical liability system more accessible to patients injured by medical errors, shorten the time involved to obtain compensation or reach resolution, reduce the costs to all parties, improve the accuracy and reliability of judgments as well as the evaluation of actual damages, and reduce the threatening and punitive nature of the system so that physicians and hospitals are more likely to disclose data on errors in an effort to learn from individual cases and improve quality.

What is needed is a new system. Studdert says that current reforms are “tweaks” that cannot fix a system that is defective at the core. I agree. The current system is designed to be adversarial. It is designed more for win/lose than uncovering the truth and this more than anything is what necessitates enormous amounts of time, effort, and money being spent in order to “win” a case. And despite all this, the system still gets it wrong 20% of the time.

Consider what happens under the current system. Cases are litigated in front of a civil tort judge who may or may not have any experience or training in medical liability cases and the juries are made up of “peers” who are usually lay people specifically chosen for their admitted lack of any significant knowledge of modern medicine and/or the health care system. It’s like amateur hour in medical court. The only “experts” are paid hacks brought in by both sides to give their “expert [paid] opinions” which may or may not be the generally accepted standard of care. Often things degenerate into a running battle to prove which side’s expert is better and therefore “right”.

Ironically, only 1 in 5 plaintiffs win if their medical malpractice case goes to trial independent of the existence of an error or the complexity involved. Obviously the system is failing here more then not.

And only a minority of cases go to trial. 90-95% of cases are settled prior to trial! At this stage there are no standards, guidelines, or quality controls to ensure that one side or the other does not get screwed. The reasons for settling prior to trial are complex and can easily be due to greed, ignorance, fear, miscalculation, and economic considerations rather then the facts of the case. Lawyers like to talk about a person’s right to have their day in court and yet it is the inside of one that almost all defendants and plaintiffs never see!

Now consider a new system by which specialized “health courts” would see these cases. The reform minded group Common Good is one force behind the idea of health courts. Instead of a court filled with amateurs and dueling “expert” witnesses these courts would seek to reduce the costly adversarial nature of the process and introduce standardization and normalization to what is too often a hectic and unpredictable process.

“The hallmark of special health courts would be full-time judges, trained in health care issues. These judges would define and interpret standards of care in malpractice cases, relying on neutral experts paid by the court and setting precedent from one case to another. Special health courts would ensure that patients injured by mistakes would be reliably compensated, without having to pay one third or more to lawyers.”

It is my belief that everyone would be satisfied under such a health court system. Plaintiffs injured by true medical errors would be guaranteed accurate evaluation and standardized compensation in a much shorter time. True peers would judge physicians and insurance companies would enjoy the reduced costs. Everyone would be satisfied except for the trial lawyers whose role as middleman (required to navigate the current complex and dysfunctional system) could be greatly diminished. No wonder they tend to oppose such reforms!