Health Courts: Exploring the ConceptMay 5, 2005
Location: Brookings Institution, Washington, DC If good policy is the result of careful research and open conversation, then the effort to create health courts got off to a promising start at the May 5 forum, "Health Courts: Exploring the Concept," co-hosted by Common Good, the AEI-Brookings Joint Center for Regulatory Studies and the Harvard School of Public Health.
On the research end, Michelle Mello, Ph.D., and David Studdert, M.P.H., of the Harvard School of Public Health opened the day with an impressive review of research into how the current tort system fails to meet key policy goals--such as fair compensation and deterrence of bad practice--and an outline of their thinking on how health courts can do better.
But the tone for the day was set by Robert Berenson, M.D., a Senior Fellow with the Urban Institute, who called on a knowledgeable and influential audience to recognize that both sides of the decades-old tort debate represent important principles and to finally come together to design a system that is both "patient centered" and responsive to "provider concerns."
Art Levin, M.P.H., Director of the Center for Medical Consumers, also spoke and stressed that any reforms must protect consumers first--and should also be oriented around reducing medical errors
During lively breakout sessions that followed the formal presentations, audience members had an opportunity to share their questions, concerns and ideas with the speakers and with David Kendall, senior fellow with the Progressive Policy Institute, and Paul Barringer, general counsel of Common Good. The audience provided invaluable feedback for Common Good and the Harvard School of Public Health, which are working jointly--with funding from the Robert Wood Johnson Foundation--to design special health courts.
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| Participants share their thoughts in breakout sessions. |
Mello's presentation opened with a fundamental question: How do we evaluate a system of medical justice? First, she said, it should compensate qualified patients. Under the current system, she detailed:
- 3 to 4% of patients suffer an adverse event, of which 1/3rd or 1/4th are due to negligence;
- Only 2 to 5% of patients injured by negligence ever file a claim;
- Of the total claims filed, about 50% have merit, while a little less than 50% do not;
- 24% of cases without merit nevertheless result in compensation.
This pervasive unreliability means that the tort system cannot meet a second goal of medical justice--deterrence of bad practices. A third goal, corrective justice, is met relatively well for some claimants, Mello said, but most injured patients don't get what they really want: an acceptance of responsibility, an apology, and an assurance that corrective measures will be taken.
On all three key criteria--compensation, deterrence and corrective justice--Mello said health courts can do better. On compensation, health courts would accept more claimants into the system by offering broader eligibility and easier access. Compensation would be more modest than under the current system, but also more reliable and equitable.
On deterrence, health courts in Mello's assessment could do no worse than the tort system, and would present an opportunity to integrate the justice system with other patient-safety initiatives, such as strengthened review boards and licensing standards.
Finally, on corrective justice, a health court system would give injured patients a better opportunity to discover what happened and to be "made whole."
Mello also noted that a health court system--judging by the experience of other countries and of U.S. programs like Workers' Compensation--would certainly improve efficiency. Forty to sixty percent of the money spent in the current system goes for overhead, compared to 20 to 30% in the workers' compensation system.
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| Speakers Robert Berenson and Michelle Mello. |
Studdert followed Mello with a talk on "framing the alternative" to the medical justice system, in which he outlined important design choices--including the standard for compensation, the process for claims and appeals, and more--that will need to be discussed and made as the health court concept becomes reality.
Studdert said health courts will most likely begin as a pilot project. Representative Mac Thornberry has introduced legislation in the U.S. House that would authorize funding for states to create special health courts on a pilot project basis.
Berenson described his experience on President Clinton's healthcare task force, noting how the debate over capping non-economic damages led to a stalemate between those who opposed caps as unfair to patients, and those who argued for caps to protect good doctors. Both sides agree, however, that the current system does a poor job at compensating injured patients and a poor job at deterring negligent care. What's needed, Berenson said, is fundamental reform addressing the interests of both patients and doctors.
Himself a doctor, Berenson said the greatest harm of the current system is that "when something goes wrong, doctors feel they can't be forthright with patients" to explain and apologize.
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| An audience member takes notes. |
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