Health courts – An alternative to medical malpractice lawsuits?
As the debate over how to reform our health care system rages on, there has been one part of the argument that has been largely ignored. The Republican Party has been pushing for some sort of tort reform, in an effort to curb the costs of medical malpractice suits and by proxy, lowering the cost of medical malpractice insurance. According to some, this would have the affect of lowering the overall cost of health care and reduce the deficit.
Mike, my co-author on Political Realities, is of the opinion that tort reform would not be that effective in lowering health care costs. Read his article for more information. Until recently, the Congressional Budget Office (CBO) seemed to agree, but they appear to have changed their mind, according to The Associated Press:
In a turnaround, it recently concluded that malpractice curbs would lower the federal deficit by $54 billion over 10 years, mainly because Medicare and Medicaid wouldn’t have to pay as much for defensive medicine.
In a move that I am very curious about, the American Hospital Association has came up with a new and very different kind of plan to address the malpractice claims of patients. It is pushing for it’s plan to be considered for debate in the upcoming floor debate on the Senate’s version of health care reform.
The plan calls for setting up panels of local experts, called health courts, to consider the claims of malpractice against doctors.
Under the plan, patients who’ve suffered an injury at the hands of a medical professional or institution could take their case to a local panel of experts appointed by state authorities.
The patient wouldn’t have to prove negligence, only that the doctor could have avoided the problem by following established guidelines for clinical practice.
If the experts find that a patient was harmed and the injury could have been avoided, the panel would offer compensation. Payments would not be open-ended, but based on a publicly available compensation schedule.
A patient who disagrees with the local panel’s ruling could appeal to a higher-level panel, and ultimately, to a court.
I think it is important to note that the courts would not be taken completely out of the system. 
They would just be put on the back burner and other methods given a chance to deal with legitimate malpractice complaints.
As one would expect, trial lawyers are coming out strongly opposed to the plan. They see a chance for some of their bread and butter to be taken away, not caring that it could positively affect the health care system in America. They could take a real hit on their wallets and that prospect appeals to them not at all.
It remains to be seen if the Democrats will allow the plan to be considered and possibly offer it as an olive branch to the Republicans, in an effort to gain more bipartisan support for their reforms. It may be up to those trial lawyers I mentioned earlier. They are one of the biggest contributors to Democratic campaigns, so they no doubt will bear some weight on the subject. On the other side of the coin, it remains to be seen if the Republicans would even consider the olive branch, if it were offered.
I can see where the plan has merit, if implemented properly. That implementation would obviously be the key to success, but that process could be eased by the $25 million the Obama administration has set aside to test alternatives to litigation. I think it should at least be looked at and considered carefully. Who knows, it might even work. What a novel idea that would be.
Larry,
I’d be curious to see what the qualifications and afilliations of such “panel” members would be. It seems practical and reasonable, and yet it opens a can of worms. Who appoints the panel members? Will they be elected? How can we insure that this won’t become a political force, subject to the whims and even bribes, of the organizations who stand to gain the most (and have huge lobbying groups) at the expense of individual Americans? And how does this go into affect without expensive challenges based on the 7th Amendment?
I think we need to be very mindful of goals, outcomes and real effect whenever we consider altering Americans’ legal rights. 54 billion over 10 years sounds like a lot, until you charge it against the 2.3 trillion dollars a year spent on health care in this country. 5.4 billion a year is nothing to sneeze at, but weighed against 2.3 trillion? A drop in the bucket, all to save the doctors money on insurance with a tactic that has been proven NOT to affect consumer health insurance rates positively at all. What, then, is the benefit to the consumer?
In his article, Mike did mention “loser pays” as a viable reform, and it’s a sound principle that can and will protect doctors against frivolous lawsuits brought forth by lawyers interested in any deep pocket they can pick. But that’s a far cry from other, more serious, reforms that would devalue a life and possibly alter Constitutional guarantees.
Larry, I saw this story a few days ago and was going to update my earlier post to reflect this “news” but you beat me to the punch. Nice post! Overall I share both the hopes and concerns Laurie expressed about these health courts. I certainly think it makes sense to have dedicated public servants with an expertise in medical issues to deal with these disputes but I am concerned about the compensation guidelines or schedule.
Let me put an ethical question on the table: three people undergo the same procedure in a hospital and the surgery goes wrong, clearly the fault of the doctor. The patient is permanently disabled. Case one, the patient is 85 years old living in a nursing home on Social Security; case two, the patient is a 50 year old man earning $150,000 per year with two children in high school; case three, the patient is a 5 year old girl. Is the compensation schedule going to provide equally for all three of these patients? If not, how do they evaluate these situations? Right now, everything is handled on a case-by-case basis but surely there must be precedents that can be used as guidelines. The idea of formalizing a compensation schedule leaves me very uncomfortable and, like the establishment of a $250,000 ceiling, creates some very uneven results that favor the medical community at the expense of the patient.
I’m wary of the potential savings and of the distorted outcomes of tort reform but I’m definitely open to suggestions that can work. Health courts have potential but I need more information.
I agree, Mike. There would be a lot of details to work out so that these courts could function properly and with fairness. I personally think the idea has merit, but we need to proceed carefully.
I, too, am wary of conforming a schedule of compensation. It seems to encourage that one body consider the “whole” over and above the “individual”. Rationing is rationing: If we hate the idea of one large system rationing out health care, why would we support one body rationing out justice?
I think I would be more comfortable with a health court that had simply the duty of assessing a finding-of-fact: Does this medical event rise to the level of malpractice? It would allow for standard medical practices to be evaluated by professionals and could be used to distinguish cases in which standard practices resulted in a bad outcome from cases where the standards were clearly violated. The former cases could definitely be used as “teachable” moments in which the professionals involved could honestly and openly report and discuss what happened, make conclusions, and possibly even alter standard practices (if necessary) to help insure better results. The latter cases could be prosecuted according to our Constitutional rights, leaving the 7th amendment in tact.
I am not so sure that I wouldn’t agree with you, Laurie. Maybe the best role for any health care court would be to determine what actually happened in the case, without a bevy of trial lawyers in the mix. Then the courts could perform their role with more information.
Tort reform does help at times, I don’t know how much it will lower health care cost nationwide, but I sure it would cut some cost. We had substantial tort reform here in Mississippi a few years back and the immediate results was good. Sadly I’m not up to snuff on these thing so refrain from getting in over my head. Good detailed post Larry, but then I always expect that from you.
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I am looking for a state where consumers are helped by tort reform. The facts do not support that Mississippi is one of them. Yes, immediate results for the DOCTORS were fabulous-their premiums saw an IMMEDIATE decrease of 42% shortly after 2004 tort reform enactment in your state. And there were 97% fewer medical malpractice suits filed as a result of the laws, as well. So we know the doctors did well.
The residents, though? Your premiums have continued to increase more than 82% in costs since 2000. Costs of premiums have risen 7 times faster than income since 2004 (as opposed to my state which had a 4% increase and no tort reforms). The number of uninsured in MS is now almost 530,000- an increase in almost 70,000 since tort reform was enacted. More than 1 in 7 of Mississippi children are now uninsured, as opposed to 1 in 4 in 2004. You also have 98,000 children who ARE covered- through the sCHIP program-something both of your US Senators voted against, by the way. Last year, your state had nearly one billion dollars in bad debt resulting from unpaid medical care, the cost of which was passed on to insurance premium holders.
So-is there a correlation between decreased costs-passed on to the consumer- and tort reform? Not in Texas, not in Mississippi. Still looking for the correlation.
I just am leery about the government setting up another agency, I just don’t trust them to set it up properly, and as you said, implementation would be the key. It is an interesting idea and any idea that adversely affects tort lawyers has to have some merit. I just wonder, will this plan really save that much money ore will it just defer the money to a different place? I haven’t read enough about it yet to know for sure.
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I wonder about that as well. Do we really need another government agency? As you have mentioned, as well as Laurie, the way the members of the court would be appointed, elected, etc. would be very important.
Mr. Pink Eye’s statement ..”any idea that adversely affects tort lawyers is a bit scary. A lot of people “feel” like they “know” that trial lawyers are evil (and it is a major theme of the right), but I’d like to know where, exactly, that comes from. Malpractice laswuit costs comprise about 2% of total annual medical costs. Why be bitter at an entire group that you have nothing to do with until you need them? One of the hallmarks of our particular democracy is our system of justice-envied around the world. I will never understand why the right wants to tear it down.
Laurie,
That perception of trial lawyers may have something to do with the fact that they seem to make out like bandits when a lawsuit is settled.
Larry,
I guess my point is: Things that adversely affect trial lawyers will probably adversely affect those in need of one. Medical malpractice awards account for 1% of the annual medical costs in the US. I’m not sure we should swing so hard to damage an industry that isn’t responsible for the majority of skyrocketing medical costs. It’s an easy shot to take, but honestly-when you need one, you need one.
As far as the health courts are concerned, who will pay the costs of appearing in front of the court? While the costs might be mitigated somewhat through standardization, somebody still will need to pay for the experts, judges, panelists, and administrative costs. Currently, trial attorneys front all costs (average costs to litigate malpractice somewhere between $50,000 and $100,000 and go up with complicated cases) and get paid back for expenses and their expertise through awards, a scale that slides downward, not upward with higher awards. Sometimes they win, and get paid big. Sometimes they lose and eat the costs. Will they still continue to do this, if the system is standardized and their expertise and talents have little bearing on the outcomes? Simple questions: Would a health court offer affordable access to the average American? How much would the costs of presenting a case go down? And without a trial lawyer willing to work on commission based on outcome, will a person’s personal financial situation be the most determinent factor in whether or not they can afford to seek justice?
I don’t think the right necessarily wants to tear our justice system down, Laurie. There is the perception I mentioned earlier, which is not helped when you see someone like John Edwards being able to run for President, simply because he made millions on lawsuits.
I also know of doctors who are choosing to discontinue their practice because of the high cost of medical malpractice insurance. I think a line needs to be drawn somewhere when doctors are leaving the industry, based on the cost of their insurance. Maybe we could do something to cut out the number of frivolous lawsuits, I am not sure. Maybe a health court system could accomplish that. Again, I am not sure.
I do think some changes are in order.
I agree, Larry. some sort of change is in order. But I do think we need to tread carefully when any special interest group, backed by the government, wants to fundamentally alter, change or suspend our constitutional rights. A health court that can objectively determine the initial valididty of the claim might, indeed, help cut the costs of frivolous suits.
But a health court that is charged by the state to save money and to replace our 7th amendment right to a trial by a jury of our peers? That’s a bit Big Brother. Think about it: We wouldn’t stand for it in DC when the 2nd Amendment rights were completely suspended, even though there was “evidence” by (I think) concerned citizens that this would save lives. Why would we sign away Constitutional rights in this instance, based on what the lobby groups for doctors and hospitals have to say? I realize you dislike John Edwards, but that’s just not a good enough reason to fundamentally alter the Constitution, do you think?
I think we can find ways to fix what ails this area without throwing the baby out with the bath water.
I read a few of the stories about the results of tort reform in Mississippi and came away with mixed feelings but one pleasant surprise. Clearly the reduction in malpractice premiums is a plus to be applauded but as Laurie pointed out it doesn’t seem to have impacted health care costs to consumers. The doctors are scoring big time with reduced expenses but costs are still escalating — that seems to me a great concern. Total lawsuits are down, and that’s a good thing, but I wonder how the people with legitimate complaints feel about the ceilings and I wonder if the ceilings can be raised considerably without raising premiums too greatly. I think the uncertainty of the ceiling is a major concern. One story talked about a jury awarding a $1 billion punitive payment. Even if you cap it at $25 million the insurers ought to feel better. But how do we make sure the savings are passed through to the patient? If that doesn’t happen then I have to agree with Laurie — the benefit is not worth the social cost of surrendering the right to a jury trial.
However, there seems to be one genuine benefit to the reduced malpractice rates that does accrue to the public — doctors are not only staying in Mississippi but others are returning and there is renewed interest in the mdeical profession. Public access to quality medical care is improved. Doctors who couldn’t afford the low reimbursement rates of general medicine along with the high malpractice premiums can now make a good living. Underserved areas and riskier practices with especially high premiums are getting doctors back. This is a terrific result that cannot be understated. But overall reductions in medical costs need to be a focus and the Republicans so concerned with tort reform need to show that not only doctors but patients as well will be served by lower costs without sacrificing fair compensation for catastrophic medical results.
Thanks for the additional research, Mike. Since the number of insured has gone down in Mississippi, I wonder who is paying for all the additional doctors? Access and affordability aren’t the same thing, and you really hit it: We must be very vigilant that any reforms under the guise of lowered health costs actually benefit the largest group.
If physisicans’ and hospital groups can claim definititve, extraordinary cost savings for the patient, then they should be able to show it on paper. I’d like to see that- a guarantee that medical charges will go down as soon as medical professionals’ expenses do. My research in Texas doesn’t support that that happened to any measurable extent. And of course, the missing link: The for-profit consumer health industry should also have “feet held to the fire”. None of this means anything if the insurance companies continue to hold their rates high, even if everybody else drops theirs. How can we insure this, with a private industry?