October 21, 2013

Health courts seen as remedy to rising health care costs

Q&A talks about medical malpractice reform with Philip K. Howard, founder and chair of Common Good, a nonpartisan, nonprofit legal reform coalition.

Q: On Oct. 21 you're addressing the Hartford County and New Haven County medical associations. Why does a room full of physicians from Hartford and New Haven counties want to hear your message? What are you trying to achieve?

A: The unreliability and inefficiency of our current medical justice system is clear: According to a study in The New England Journal of Medicine, it has an error rate of 25 percent. Malpractice suits generally take years to resolve, and almost 60 percent of an award goes to lawyers and administrative costs. In addition, its findings vary wildly from case to case.

It's that last point that doctors hate, and health care in America will never be fixed unless we as a nation address doctors' understandable distrust of medical justice. The distrust fuels defensive medicine, which is estimated to cost up to $200 billion annually, and has slowly eroded both the doctor-patient relationship and doctors' job satisfaction generally over the years.

What we're trying to achieve is a medical justice system that is balanced and efficient, that strives for consistency and clarity, and that elevates the needs of patients and doctors over those of trial lawyers. We believe that health courts are the clear answer.

Q: You say special health courts intend to bring reliability to medical justice. How realistic are these types of courts and how long will it take to establish these kinds of courts? Are they federal or state courts?

A: Health courts are completely realistic. The concept has been endorsed by every legitimate health care constituency, including medical societies, patient safety organizations, and consumer groups like AARP. It has been endorsed by leaders of both political parties, including President Obama and Republican presidential nominee Mitt Romney. Only trial lawyers, who have no role in health care, have stood in the way, blocking pilot projects at the state and federal level.

As the public gets increasingly sick of paying for rising health care costs, we're confident they'll tell Congress and state legislatures to put the public interest ahead of lucrative special interests. We already know that health courts work, because variations of the model are in place all over the developed world.

Health courts would be state-level courts, presided over by judges dedicated full-time to resolving health care disputes, and staffed with neutral medical experts who could lend their expertise when needed. The judges would make written rulings to provide guidance on proper standards of care, and resolve cases based on sound science, not emotional appeals to juries. These rulings would set precedents on which both patients and doctors could rely.

Q: There was recently a blog post on the Common Good website that said 39 percent of malpractice suits take more than three years to resolve. How does that compare to normal lawsuits and what does Common Good think can be done to accelerate the process?

A: Medical malpractice cases are particularly slow for civil suits. On average, cases that go all the way to trial take somewhere between 39 and 44 months. By comparison, according to the U.S. Department of Justice, the median time from filing to trial for all types of civil lawsuits is less than two years.

The impact of multi-year medical malpractice cases is felt far beyond the courtroom. Doctors don't, in general, fear the outcome of a medical malpractice lawsuit; the vast majority of them are decided in their favor. It's the disruption and embarrassment of being dragged through the legal process for years — even if they did nothing wrong — that doctors fear.

That's what gives the trial lawyers the upper hand and fuels defensive medicine. Moreover, this ensures that legitimate cases are never pursued, and victims of medical accidents are never properly compensated.

Health courts can speed this process up. By creating clear standards of care, health courts will allow judges to dispose of weak and invalid claims quickly after filing, while also disincentivizing doctors and insurers from defending cases in which they are unambiguously at fault. Furthermore, by ensuring that judges and not juries are deciding cases, and by ensuring that judges rely on the testimony of neutral court-appointed experts rather than litigants' hired guns, health courts will eliminate the need to even hire a lawyer for most plaintiffs, shaving considerable time and expense off of the current process.

Q: Also in that same blog post was the statement that 93 percent of doctors believe expressing sympathy for patients by saying "I'm sorry" would not have helped. Is there any type of reform that's going to solve that situation? Have malpractice cases totally dehumanized the patient-doctor relationship?

A: When every patient is a potential adversary, and every interaction has to be guided by a little lawyer on their shoulder, doctors can't help but close themselves off from the very people they're supposed to be helping. There's great value in health care providers admitting mistakes and apologizing, but as long as the system is unreliable, defensive medicine will continue to undermine the humanity and trust that should be at the core of the doctor-patient relationship.

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