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Frequently Asked Questions About Health Courts
1) What are health courts?
2) Why do we need health courts?
3) How does the health court model differ from “tort reform”?
4) How will health courts work in practice?
5) How will health courts better serve patients than the current tort system?
6) What standard will be used to determine whether injured patients receive compensation? How does the avoidability standard differ from negligence?
7) What is a compensation schedule and how is it different from a cap on awards?
8) How will health courts better serve health care providers than the current tort system?
9) Will health courts cost more than the current system?
10) Are health courts constitutional?
11) Will parties be able to appeal health court decisions?
12) How will health courts remain independent and free from political influence?
13) Who supports the health court concept?
1) What are health courts?
Health courts are specialized administrative courts designed to handle medical injury disputes. Common Good has been working with the Harvard School of Public Health on a project supported by the Robert Wood Johnson Foundation to develop a conceptual proposal for a health court system. (Read more about the project here.) Under the evolving proposal, trained judges assisted by independent, neutral experts will settle malpractice disputes between patients and providers. As judges issue written opinions of their decisions, a body of law will develop to delineate clear and consistent standards of care. In addition to full economic damages, injured patients will receive non-economic damages according to a compensation schedule, which will be based on a patient’s circumstances and the severity of their injury (or injuries).
2) Why do we need health courts?
The current system of medical justice fails both patients and providers, and needs comprehensive reform. It is unpredictable, inefficient, and emotionally taxing on all of the parties involved. Under the current system, most patients who are harmed by medical error receive no compensation at all. The landmark Harvard Medical Practice Study found that only a fraction of those who have been injured due to negligent care choose to file a claim.[1] A recent Harvard study found that those who are compensated endure an average of five years of litigation before their cases are resolved – and they see more than half of their awards spent on overhead costs.[2] According to this study, for every dollar paid in compensation to plaintiffs, 54 cents go to overhead costs. This rate is much higher than other compensation schemes such as workers’ compensation, in which overhead costs amount to roughly 20-30% of total costs.[3] The lengthy process and high costs also prohibit patients’ access to the court system because, unless the promise of a large award is likely, most lawyers will not take their case as it is simply not worth their time.[4]
At the same time, nearly universal distrust of the system drives up costs – billions of dollars are spent on defensive medicine alone[5] – and drives down quality, in part because open professional interaction essential for effective care is chilled. As the Institute of Medicine has noted: “Patient safety is also hindered through the liability system and the threat of malpractice, which discourages the disclosure of errors. The discoverability of data under legal proceedings encourages silence about errors committed or observed. Most errors and safety issues go undetected and unreported, both externally and within health care organizations.”[6]
The current system pits patients and providers against each other, when the two groups are not, of course, natural enemies. Both need what justice today is not providing – reliability. Patients need a reliable system to hold doctors accountable when there is a mistake, and doctors need a reliable system to protect them when they have acted within the standard of care.
For examples of how the current system fails patients and providers, visit MedWatch. See also our Fact Sheets, Health Court Brochure, and Resource Binders for more information.
3) How does the health court model differ from “tort reform”?
Unlike most tort reform proposals, health courts address the root problems of our current medical justice system – mainly, its unreliability, inefficiency, cost, inability to compensate the truly injured, and failure to improve patient safety.
4) How will health courts work in practice?
The hallmark of health courts are judges with training in health care issues dedicated full-time to resolving healthcare disputes. They will issue written rulings in every case. These rulings, in turn, will provide guidance in future medical injury cases. Health court judges will have the authority to hire neutral experts to guide them in particular disputes – instead of the competing experts-for-hire used in today’s system who now confuse and prolong malpractice cases, and drive up costs. Judges will award non-economic damages (over and above medical costs and lost wages) in accordance with a schedule of benefits. The schedule will provide amounts for specific types of injuries while at the same time taking into account individual patient circumstances. As is the case with already existing administrative systems – e.g., for bankruptcy, workers’ compensation, and vaccine liability matters – there will be no juries. To assure reliability and fairness, each ruling can be appealed to a new Medical Appellate Court.
The expedited nature of proceedings will reduce the emotional toil on, and the legal fees of, all of the parties involved. Patients will still have their own lawyer(s), but the total fees paid to them will be less because cases will take much less time. Health courts will also have strong linkages to patient safety structures and institutions to help providers learn from their mistakes and prevent their reoccurrence.
To read more about the key elements of Common Good and Harvard’s health court proposal, see “Design of a ‘Health Courts’ System Demonstration.”
5) How will health courts better serve patients than the current tort system?
A specialized court system will reduce the amount of time needed to bring a malpractice claim to resolution and lower the cost.[7] If a patient’s injury qualifies as an Accelerated Compensation Event (ACE), the patient will receive compensation even faster, and at an even lower cost. An ACE is a predetermined malpractice scenario in which experts agree that actions by the provider(s) clearly lead to an avoidable injury.
In an environment where they are less fearful of being sued for admitting mistakes, providers will be more likely to share information, thereby improving patient safety. Health courts will also create a more suitable climate for liability insurance premiums, which in turn can help increase patients access to health care services.
6) What standard will be used to determine whether injured patients receive compensation? How does the avoidability standard differ from negligence?
The current medical justice system uses negligence as the standard in determining a provider’s liability. From a patient’s perspective, negligence is difficult to prove. From a provider’s perspective, today’s standard focuses blame on individual providers when most medical injuries result not from an individual’s malfeasance, but rather from a breakdown in systems of care. In addition, the stigma attached to being found negligent discourages providers from sharing information about mistakes, which experts say is essential to improving patient safety and the quality of care.
Under the health court system, injured patients will be compensated using a liberalized standard known as “avoidability.” Under this standard, injuries will be compensated if they were caused by treatment (or the lack of treatment) and could have been avoided had best practices been followed. Avoidability represents a more expansive standard of liability than negligence, and could help to expand access to compensation for injured patients. More importantly, it will help improve patient safety and the quality of care by reducing the emphasis on individual fault and acknowledging the role of system failures in causing injuries. In addition, by tying decisions about liability to best practices, the avoidability standard will also promote adherence to evidence-based standards of practice.
7) What is a compensation schedule and how is it different from a cap on awards?
One oft-proposed tort reform is to enact a cap on the amount of money that can be awarded to a victorious claimant. Critics of award caps argue that caps impose a “one-size-fits-all” system upon claimants that fails to take into account individuals’ circumstances. In contrast, a compensation schedule, which uses a predetermined methodology to assign different values to different elements of an individual’s circumstances, is a more flexible system that allows for award amounts to account for claimants’ differences.
A compensation schedule will also promote horizontal equity among claimants by ensuring that people with similar injuries and circumstances are awarded similar amounts. Of course, as above, a schedule will also allow for individual differences.
8) How will health courts better serve health care providers than the current tort system?
Under a health court system, providers will have clear and reliable guidance on what constitutes proper standards of care because health court judges will issue written opinions that have a binding effect on future cases. With a more reliable medical justice system in place, providers’ fear of litigation will be diminished, freeing them to share information. This enhanced information flow will improve patient safety and the quality of care. In addition, more consistent and reliable judgments will eventually lead to lower medical malpractice premiums. Lower premiums will lower overhead costs for providers, making the practice of medicine economically feasible for providers, and cost-effective for patients.
9) Will health courts cost more than the current system?
The best available research suggests that an administrative compensation system, employing compensation schedules and an avoidability standard of liability, could cost about the same as the current system.[8] Implementing pilot projects will help shed light on how health courts would impact system costs.
10) Are health courts constitutional?
Congress has broad powers to authorize special health courts under the Spending Clause and the Commerce Clause, because medical injury litigation is economic activity that is in and affects interstate commerce.[9] Contrary provisions of state law, if any, would be preempted under the Supremacy Clause.[10] Moreover, similar federal administrative compensation systems have been upheld against constitutional challenge.[11] State constitutions vary, but they do not likely preclude the development of health courts so long as they provide an adequate substitute remedy for patients.
11) Will parties be able to appeal health court decisions?
The Common Good-Harvard proposal currently envisions that parties will be able to appeal decisions made in the health court system to a medical appellate court, with further review in the traditional court system.
12) How will health courts remain independent and free from political influence?
Any dispute resolution system can be susceptible to political influence, but proper design can help insulate a health court system from political pressure. Critics point out that administrative compensation systems, which are subject to legislative oversight, are susceptible to political whims because special interests can lobby the legislature to make changes to the systems in their favor. However, a similar risk exists in the current system, primarily due to weaknesses inherent in different judicial selection methods. There are several structural safeguards that can be included in a health court system, similar to those already used by states to protect the independence of their judiciaries. These safeguards include: education and experience requirements for those applying to serve as health court judges; performance evaluations of sitting health court judges by parties that come before the judge; training and continuing education for judges; and bipartisan nomination or appointment commissions to recommend or select health court judges.
13) Who supports the health court concept?
A wide variety of individuals, organizations, and publications have endorsed the health court concept, including state and national legislators, state and local medical societies, provider organizations, consumer groups, business groups, and think tanks. Support for health courts is bipartisan. Both the Democratic Leadership Council and the Senate Republican Policy Committee have endorsed the concept.
For a list of individual endorsements, click here. For a list of organizational and media endorsements, click here. To see the results of our national poll on health courts, click here.
At the federal level, there are currently bills in the U.S. Senate and House of Representatives to create health court pilot projects. Health court bills have been introduced – by politicians from both sides of the aisle – in several state legislatures as well. For more information on recent legislative activity on health courts, click here.
[1] Mello, Michelle M. Testimony before the United States House Committee on Energy and Commerce, July 13, 2006, 1. Available at: http://energycommerce.house.gov/108/Hearings/07132006hearing1972/Mello.pdf .
[2] Studdert, DM, Mello, MM, Gawande, AA, et al. Claims, Errors, and Compensation Payments in Medical Malpractice Litigation. N Engl J Med 2006; 354: 2031.
[3] Studdert, David M, Testimony before the United States Senate Committee on Health, Education, Labor and Pensions, June 22, 2006, 4. Available at: http://help.senate.gov/Hearings/2006_06_22/Studdert.pdf .
[4] Sage, William, online discussion at PointofLaw.com, “Why Flatter The Trial Lawyers?,” Dec. 6, 2005. Available at: http://www.pointoflaw.com/feature/condition_critical1205.php
[5] The U.S. Department of Health and Human Services has estimated that $60 to $108 billion is spent nationwide on defensive medicine each year. U.S Department of Health and Human Services, Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs by Fixing our Medical Liability System, July 24, 2002, 7. Available at: http://aspe.hhs.gov/daltcp/reports/litrefm.pdf.
[6] Kohn, L.T., Corrigan, J.M. and Donaldson, M.S. Editors; Committee on Quality of Health Care in America, Institute of Medicine, To Err Is Human, Academy Press, 2000, 43. Available at: http://www.nap.edu/catalog/9728.html.
[7] Research has shown that administrative compensation systems, which the health court system would rely upon to a greater extent that the existing system, incur much lower overhead and administrative costs than the tort system. For example, workers compensation systems have overhead costs of 20 to 30 percent. Many public and private disability insurance schemes have overhead costs of 10 to 15 percent. Weiler P, Hiatt H, Newhouse J, Johnson W, Brennan T, Leape L. A measure of malpractice: medical injury, malpractice litigation, and patient compensation. Cambridge, MA: Harvard University Press; 1993. Bovbjerg RR, Sloan FA. No-fault for medical injury: theory and evidence. University of Cincinnati Law Review. 1998;67:53-123.
[8] Studdert, DM, Thomas, EJ, Burstin, HR, et al. Negligent Care and Malpractice Claiming Behavior in Utah and Colorado, Medical Care 2000; 38(3): 250-260.
[9] See South Dakota v. Dole, 483 U.S. 203 (1987); Gonzales v. Raich, 125 S.Ct. 2195 (2005); United States v. Lopez, 514 U.S. 549 (1995).
[10] See Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984); Pennsylvania v. Nelson, 350 U.S. 497 (1956).
[11] See Colaio v. Feinberg, 262 F. Supp. 2d 273 (S.D.N.Y. 2003), aff'd Schneider v. Feinberg, 345 F.3d 135 (2d Cir. 2003).
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