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AAOS Now

Published 4/1/2008
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Paul Barringer; Brynna Pietz

Healthcare, medical liability, and reform alternatives

The 2008 presidential campaign is drawing attention to healthcare reform, a focus that is likely to continue in coming months. It’s no secret why: Americans express deep dissatisfaction with the healthcare system. In a recent Gallup poll, for example, nearly three-quarters of respondents said that the healthcare system is in crisis or has major problems.

Cost and access top Americans’ healthcare concerns in recent polls. Quality is also cited as a problem. Whether these concerns will translate into political momentum for change is unknown. Most Americans seem to favor change; in a recent poll by CBS News and the New York Times, for example, 9 in 10 respondents said that they thought the system needed fundamental change or a complete rebuilding.

The issue of medical liability
In any discussion of healthcare reform options, the issue of medical liability must be considered. The liability system drives behavior in a way that affects the entire healthcare system—including costs, access to services, and quality of care.

America’s current system for resolving medical liability litigation is needlessly wasteful and inefficient; more than half of every dollar spent in medical liability cases pays for attorney’s fees and administrative costs. The system is also cumbersome, slow, and gives claimants little reason to be satisfied, according to several studies, because it compensates few deserving patients. Finally, it is inconsistent, providing at best only unclear signals to physicians and other healthcare providers about what it takes to avoid a lawsuit.

Liability insurance costs soared earlier in the decade only to stabilize recently in many states, albeit at historically high levels. Evidence suggests, however, that the liability environment continues to have an impact on physician practice patterns. Thus, it has tremendous potential over time to affect patient access to care, particularly in high-risk specialties.

Within such an unpredictable and inconsistent legal system, physicians and other healthcare providers commonly practice ‘defensive medicine,’ providing treatment and making recommendations to avoid potential lawsuits rather than basing them on their best judgment. Estimates vary, but defensive medicine likely adds billions of dollars each year to U.S. health spending. Having to view every patient as a potential litigant also erodes the doctor-patient relationship.

Impact on patient safety
Perhaps even more important is the impact the tort system has on patient safety. According to patient safety experts, information about errors must be collected and analyzed to correct the breakdowns in healthcare delivery systems that lead to most errors in treatment. Fear of litigation, however, leads to a protective culture of silence in healthcare environments, stymieing discussion about adverse events and near misses in healthcare delivery.

Of course, these shortcomings of the tort system are nothing new, and substantial political energy has been devoted through the years to reforming the system. The political debate over medical liability reform—in Washington, D.C., and in many states around the country—has more often than not been characterized by bitter partisan divisions and little or no action.

Among the most frequently discussed issues has been the question of whether or not to limit noneconomic damages in medical injury cases. In the current political environment, however, reforming the flawed malpractice system is likely to take a new kind of thinking and a new approach. Among a range of possible policy options, the proposal to create a specialized process—or “health court”—for resolving injury disputes may be just the right prescription to correct the tort system’s failings.

Are “health courts” the answer?
Over the past several years, the nonpartisan legal reform coalition Common Good has been working with a team of researchers from the Harvard School of Public Health. Supported by the Robert Wood Johnson Foundation, they have developed and promoted a proposal for developing health courts to resolve medical injury disputes.

Under their proposal, health courts would employ specialized adjudicators with expertise in healthcare issues to resolve disputes. Instead of the current experts-for-hire environment, health courts would employ one or more independent expert witnesses, who would be retained and compensated by the court. As one possibility, adjudicators rather than juries could render decisions about the standard of care. Alternatively, adjudicators could provide more guidance to juries to aid in decision making.

Written rulings by adjudicators in the health court could help to inform future decisions and send clear signals to healthcare providers. A functioning health court might retain negligence as the standard of liability, or it might shift to the broader “preventability” standard, under which certain preventable outcomes would be compensated to lessen emphasis on blaming individual practitioners for lapses in treatment. Either way, the health court system would have robust linkages to patient safety initiatives and structures to ensure that data about errors helped to promote continuous learning and quality improvement at the clinical level.

The health court proposal has generated substantial interest. Many organized medical societies support the idea of health court pilot projects. Many state, regional, and county medical societies have also been supportive.

Health courts have been endorsed by major newspapers and magazines, political organizations, and major think tanks. Recent legislative proposals at both the federal and the state level have bipartisan sponsors.

Although the institutional barriers to change are powerful, the support generated by the evolving health court proposal is substantial. With healthcare reform as a major public priority, and with continued outreach, education, and advocacy, it may well be possible to create pilot projects that test the feasibility of this promising proposal.

Paul Barringer is general counsel and Brynna Pietz is outreach assistant at Common Good, the national nonpartisan legal reform coalition. Common Good and researchers from the Harvard School of Public Health have been developing a proposal for establishing health courts at the state level, with support from the Robert Wood Johnson Foundation.

Additional References:

Saad, Lydia. “No Increase in Public Pressure for Healthcare Reform.” Gallup 29 Nov. 2007. http://www.gallup.com/poll/102931.

Saad, Lydia. “‘Access’ Gains as Top Perceived US Health Problem.” Gallup 3 Dec. 2007 http://www.gallup.com/poll/102964.

See also Appleby, Julie. “Consumer Unease with U.S. Health Care Grows.” USA Today, 16 Oct. 2006. http://www.usatoday.com/money.

CBS News/New York Times. “Poll: The Politics of Health Care.” 1 Mar. 2007. http://www.cbsnews.com/stories

Studdert, David et al. “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” New England Journal of Medicine 354.19 (2006): 2024:2033.

Harvard Medical Practice Study. Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York. New York State Dept. of Health 1990

Studdert, David et al. “Negligent Care and Malpractice Claiming Behavior in Utah and Colorado.” Medical Care 38.3 (2000): 250-260.

Studdert, David et al. “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” New England Journal of Medicine 354.19 (2006): 2024:2033.

Bovbjerg, Randall. “Paths to Reducing Medical Injury: Professional Liability and Discipline vs. Patient Safety – and the Need for a Third Way.” Journal of Law, Medicine & Ethics 29 (2006): 369-380.

Mello, Michelle. Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms. Research Synthesis Report No. 10. Princeton, NJ: The Robert Wood Johnson Foundation, 2006.

Mello, Michelle et al. “Effects of a Malpractice Crisis on Specialist Supply and Patient Access to Care.” Annals of Surgery 242.5 (2005): 621-628.

Studdert, David et al. “Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment.” Journal of the American Medical Association 293.21 (2005): 2609-2617.

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U.S. Congress, Office of Technology Assessment. “Defensive Medicine and Medical Malpractice.” OTA-H-602 Washington, D.C.: U.S. Government Printing Office, 1994.

Corrigan, Janet et al. Fostering Rapid Advances in Health Care: Learning from System Demonstrations. Washington, DC: Institute of Medicine, National Academies Press, 2002.

Mello, Michelle et al. “‘Health Courts’ and Accountability for Patient Safety.” Milbank Quarterly 84.3 (2006): 459-492.

Barringer, Paul. Windows of Opportunity: State-Based Ideas for Improving Medical Injury Compensation and Enhancing Patient Safety. Washington, DC: Common Good, 2006.

American Medical Association. American Medical Association Health Court Principles. 2007 www.ama-assn.org/pdf

American College of Obstetricians and Gynecologists. Testimony Submitted by the American College of Obstetricians and Gynecologists. Health, Education, Labor and Pensions Committee, United States Senate, Medical Liability: New Ideas for Making the System Work Better for Patients. 22 June 2006. American Academy of Family Physicians. Medical Liability Reform: Summer 2007. 2007. http://www.aafp.org

American College of Emergency Physicians. Policy Statements: Health Courts. Annals of Emergency Medicine 47.5 (2006): 511.

Twanmoh, J. “Malpractice Liability from an Insurance Company’s Perspective.” Maryland ACEP Emergency Physician Interim Communique, Winter 2006/2007: 5,9.

Massachusetts Medical Society. Massachusetts Medical Society Adopts Resolutions on Public Health and Health Policy Issues at its 2006 Annual Meeting. 2006 www.massmed.org/AM

“Health Courts’ Offer Cure.” Editorial. USA Today 4 July 2005 http://www.usatoday.com/news

“Scalpel, Scissors, Lawyer.” Editorial. The Economist. 14 Dec. 2005. Democratic Leadership Council

“Idea of the Week: Health Courts.” DLC New Dem Dispatch 14 Feb. 2005 http://www.dlc.org

Republican Policy Committee. “Meaningful Health Care Reform Begins with Health Courts.” 7 Mar 2006

Manhattan Institute: Center for Legal Policy. “Trial Lawyers Inc.: Health Care.” 2005 http://www.triallawyersinc.com.pdf

Udell, Nancy et. al. “Health Courts: Fair and Reliable Justice for Injured Patients.” PPI Policy Report 17 Feb. 2005

Fair and Reliable Medical Justice Act. S 1481. 110th Congress. 2007. Fair and Reliable Medical Justice Act. HR 2497. 110th Congress. 2007.