Health Courts: The Way of the Future? American Association on Health & Disabilities Newsletter
Winter 2007 Barely one-half of all Americans are satisfied with their jobs, and only 14 percent of those who say they are content also say they are “very satisfied.” And workers in Maryland face some of the worst job commutes in the nation.
So Paul Barringer is a lucky man. As general counsel for Common Good, a national nonpartisan legal reform coalition, Barringer loves going to work every day. After bicycling into his Washington, DC, office from nearby Silver Spring, Maryland, he spends his time promoting an initiative he believes in: replacing our current approach to medical liability with administrative health courts.
According to Barringer and others, the benefits of the transformation would be legion. The reforms could expedite compensation to injured patients, enhance judicial consistency, facilitate patient safety initiatives and introduce new efficiencies into our health care system. The proposal has attracted a great deal of interest from federal and state policymakers, as a reformed system could free up much-needed dollars for patients, families, physicians and better health care.
What Are Health Courts?
As proposed by Barringer and Common Good, health courts provide a specialized way for resolving lawsuits over medical injury disputes. Health courts are staffed by specially trained judges, assisted by neutral experts and guided by evidence-based practice guidelines. In our current system, roughly 60 percent to 70 percent of awards are spent on attorneys and expert witnesses — typically after the case spends four or five years (or more) working its way through the court system. But most people injured by the health system do not go to court or receive awards. Moreover, judicial outcomes are inconsistent and unpredictable.
The health court model emphasizes preventability — best practices. It would reduce the need to practice defensive medicine, which adds enormously to today’s soaring health costs. Defensive medicine also subtracts from our common store of medial knowledge by discouraging health care providers from sharing information that could harm them in court. The health court system encourages a feedback loop to help providers learn from mistakes and improve overall patient safety.
The health court tribunal would feed into the larger administrative system. In addition to more disclosure about adverse events to claimants, there would be early, standardized offers of compensation, similar to the way Workers’ Compensation works today. The early-disclosure and early-offer programs would be based on the concept of accelerated compensation events (ACEs). In an ACE, victims of undisputed medical errors are compensated quickly under a predetermined damages schedule.
The initiative, which is being led by Common Good and researchers from the Harvard School of Public Health, is funded by the Robert Wood Johnson Foundation (RWJF). In January 2005, Common Good and the Harvard School of Public Health were awarded a $1.5 million grant from RWJF to design a prototype health court system.
Approaches similar to health courts are already working well in New Zealand and some Scandinavian countries. According to Barringer, the Scandinavian systems are very efficient. Only 15 percent of money is spent on administrative costs — the rest goes to patients. Claims resolution takes roughly six to nine months. It is a much less adversarial system than ours.
Interest in Health Courts Growing
Barringer says that the new democratic Congress may be ripe for medical liability reform. Congress is currently looking at alternative approaches to liability reform, particularly those that could improve health care quality and expand access to health insurance. Several bipartisan legislative initiatives are currently making their way through the political process. Many organizations, such as AARP, a number of health care provider groups, and the Joint Commission on Accreditation of Healthcare Organizations, have expressed support for the proposal. According to polling commissioned by Common Good and conducted by Harris Interactive, the public also seems interested and supportive.
Moving forward, Common Good will need ideas and feedback from a range of different groups, including disability organizations. Barringer said he is looking forward to working with the states to ensure that reforms are inclusive and address the needs of people with disabilities, and he hopes to work with disability organizations in developing state-specific proposals that address their needs and interests.
According to Barringer: “The issues at stake are huge. We’re hoping to set a new course in law and health policy that can deliver benefits to a broad range of stakeholders.”
Next Steps
Last month, Common Good received a two-year grant of nearly $1 million from RWJF to promote the creation of health courts in six states.
The RWJF grant will enable Common Good — in collaboration with faculty from the Harvard School of Public Health, Harvard Medical School, University of Denver’s Sturm College of Law and Yale Law School — to perform the outreach and consensus-building necessary to initiate the state demonstration projects. The State Action Project will provide information and technical assistance to states interested in health courts. These pilot projects are the first step.
Barringer said, “We don’t claim to have all the answers. But we’re asking important questions: How to improve efficiency and patient safety, drive more dollars to patients, and minimize the adversarial nature of the system.”
Read another profile of Barringer on LawCrossing.com.
| 
