Published 9/1/2011

Health courts? Let’s think again

By George D. Dikeou, Esq.

Although widely touted, health courts may not be the right answer

The current method of resolving incidents of medical injury in the United States is widely recognized as flawed. A system of “fault finding” as a requirement for claims resolution does not advance quality improvement or patient safety.

The idea of health courts has been proposed as a possible solution, but some believe that health courts will not solve the crisis of claims resolution that currently faces injured patients and will not advance quality improvement or patient safety. An alternative method should be considered.

Problems with the current system
Study after study has found that the current U.S. system for resolving claims following medical injury is broken. These studies have been consistent in pointing to the following specific shortcomings:

  • It is adversarial. It requires a medical professional or a medical entity or both to be found “at fault” in a lawsuit before either compensation is awarded or the provider is held accountable.
  • It takes too long for resolution—often several years. This leaves both parties to a lawsuit in limbo.
  • Resolution is often unfair. Often, those who deserve compensation do not get it, while those who do not deserve compensation do.
  • Results are often unpredictable. The same set of facts and behaviors can result in very different verdicts or settlements. No standard of medical care can be developed from these differing results.
  • Full compensation does not go the injured party(ies). Injured parties typically receive 35 cents to 40 cents of each dollar awarded in a successful lawsuit and spent in defense of such a lawsuit. The rest goes to the system—the plaintiff’s attorney, defense attorneys, expert medical witnesses, and litigation costs.
  • An adversarial system focused on “shame and blame” does not lead to learning or remediation. A culture of defensiveness on the part of the providers develops, reducing the chances of improving the quality of future care.
  • Finally, the need to find “fault” holds only those who are found to be at fault accountable for the care provided. There is no systematic focus on prevention and quality improvement.

Why not health courts?
The health court concept does not solve these problems. As proposed, health courts would replace a civil jury with an “expert” judge, who would be able to consult with medical experts as to the cause of harm. As proposed, damages would be limited in some instances to promote uniformity in compensation, and results would be widely disseminated.

Even if the basis for damages is changed from “negligence” to “avoidable harm,” it still will be necessary to determine whether the provider met appropriate standard of care and whether that action caused the alleged harm. This would not change from the current tort system.

Although various articles and presentations suggest that implementing health courts will result in some improvements, health courts do not represent a qualitative improvement over the current system for the following reasons:

  • The system will still be adversarial. There will still be opposing attorneys and a need to find someone at fault.
  • Given current court system case loads, required priority for certain types of cases, and the fiscal constraints that already contribute to long delays in court resolution, it is unlikely that health courts will be that much faster.
  • Judges are human. The health court concept presumes that a specialty judge will ensure that only those who are deserving will be compensated. My experience suggests that judges are swayed by the same arguments and emotions as juries and will be just as likely to err in their findings as anyone else. Similarly, assuming that specialty judges will be consistent and that standards of care will become uniform presumes too much about the wisdom and consistency of judges.
  • How money is distributed won’t change. Attorneys, medical experts, and court reporters will still have to be paid, reducing the amount of money available for the injured party.

Health court advocates suggest that learning and quality improvement will result because verdicts and standards of care developed from them will be published and can be used for medical education. This completely misses the point. “Shame and blame” would still be the operative words in a health court proceeding, where someone would still be at fault. In addition, the system will address only those cases brought to court. Where is the systematic learning that can be derived from near misses?

The United States needs a system that analyzes what happened, why it happened, and how it can be prevented in the future. This information must be systematically distributed to providers for their education and the improvement of quality of care. Finally, the emphasis must be on improvement and remediation, not shame and blame. Improve performance first and hold accountable only those who cannot be changed or will not improve their quality of care.

What might work?
If a system based on the need to find someone at fault does not serve either medicine or the public well, what would an ideal system look like? Many believe that such a system must meet the following three fundamental objectives:

  1. It must meet the ongoing medical and financial needs of the patient. This must be done in a nonadversarial process and must not be linked to the need to find someone at fault.
  2. An inquiry process must be designed solely for the purpose of identifying the underlying cause of the unanticipated outcome. The process must be open, honest, and involve not only medical experts in the field, but both the patient and the providers, in a full analysis of the care given and the care systems involved. Lessons learned from this inquiry must be openly and widely shared so that others can learn from any errors, mistakes, or improvements that might be discovered.
  3. The major emphasis must be on improving care quality and patient safety, with an additional focus on remediation, ie, improving the quality of healthcare delivery by the individual provider(s) or healthcare entities involved in a particular incident. If the provider(s)/entity(ies) learn from the experience and can move on to provide quality health care in the future, they should be allowed to do so. However, not all will or can learn from their mistakes. In those limited cases of intractable behavior and attitude, the provider/entity must be dealt with through proper referral to the regulatory body responsible for ensuring public safety.

An alternative model
New Zealand probably comes as close as any country in implementing a system that meets these objectives. Although New Zealand’s single-payer healthcare system obviously facilitates some of their methods of dealing with medical injury, the United States can apply some strategies.

For example, New Zealand clearly separates the question of compensation from the question of accountability. A finding of “fault” is not necessary for a resolution of an injured patient’s claim for compensation. When medical treatment caused injury, the case is reviewed to determine whether a causal link exists between the treatment and the injury. This is not a finding of fault.

Injuries caused by medical treatment are resolved by a National Claims Unit based on information provided by the patients, their providers, and independent clinical advisors. Compensation is based on a fixed schedule and provides for treatment and rehabilitation, loss of earnings, lump-sum compensation for permanent impairment, and support for dependents.

A Health and Disability Commission, separate from the Claims Unit and the claims process, analyzes provider behavior and disseminates lessons learned with a view toward improving system-wide patient safety and quality of care. Providers are given the opportunity to remediate and learn from their previous patterns of care and, when necessary, are disciplined.

The system in New Zealand is focused on the elimination of “shame and blame”; it provides a full analysis of unanticipated events so that quality improvement and patient safety can be advanced. The focus is on remediation of provider performance, with full accountability where warranted. We should have such a system in the United States.

George D. Dikeou, Esq., is on the board of directors of the Colorado Judicial Institute, a consultant to COPIC Insurance of Colorado, and chair of the State of Colorado Committee on Uniform Credentialing Applications. He can be reached at gdikeou@copic.com

Additional Link:
Health Affairs article on the medical liability resolution system in New Zealand