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Trial lawyers oppose another good idea: Expert health courts
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The idea of expert health courts makes a lot of sense and our country has historical precedent for expert courts in other areas that require technical and specialized knowledge. We have bankruptcy, patent and tax courts, and even specialized ruling bodies for worker compensation disputes, just to mention a few.
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Attorney Philip K. Howard is chair of the non-profit Common Good, which is promoting the concept of "expert health courts" (www.cgood.org). Their mission states that they want to restore reliability to law, and "Americans should feel free to make sensible decisions and run public institutions without fear of lawsuits or legal challenges."
It notes further: "Americans today are afraid the law won't protect sensible decisions. Doctors practice defensively; teachers cannot maintain order in their classrooms." And Howard writes, "It doesn't have to be this way."
The medically uneducated
Civil juries were designed to resolve disputes of facts and not to determine the standard of care in complicated medical cases. Juries are composed of people with different educational and technical backgrounds, which may not be suited to deciphering and analyzing complicated scientific and clinical data related to the standard of medical care. The Common Good model substitutes specially trained administrative judges and neutral experts who would make these decisions in health courts.
This system would replace the melodrama of conflicting experts presenting data before a jury. Imagine short cutting this lengthy and emotional trauma. The savings in legal fees alone would significantly reduce the costs of our current malpractice system. Deserving patients would receive settlements sooner and not divide them with attorneys.
I agree it is time to try this concept with a few pilot studies. Many hospitals are willing to participate in these pilots and there is strong consumer support. Different states now are considering pursuing this concept.
All opposed — trial lawyers
Who do you think are the major voices that oppose these pilots? The trial lawyers want juries to make the final decisions. The art of their business is swaying and confusing medically uneducated and uniformed jurists on highly technical aspects of medical cases. And while juries can often find agreement on actual monetary losses, the wild card in the jury system remains pain and suffering compensation.
The trial lawyers have been successful in blocking any meaningful reform in this area of pain and suffering and punitive damages in our malpractice system.
Hopefully, "Momentum for special health courts is building," notes Common Good's Web site. "National leaders agree that America needs a new system of medical justice, but they fail to agree on how to fix it. Fresh policy approaches are desperately needed. ... With the support of the Robert Wood Johnson Foundation, Common Good is collaborating with the Harvard School of Public Health to design a proposal for creating health court pilot projects at the state level."
Tort reform's mixed results
This approach differs from the tort reform that physicians have been lobbying for with varied success. Tort reform has not gotten the widespread support to obtain state and federal legislation capping damages or blocking access to the courts. Common Good's approach "focuses on creating a legal system that is reliable and balances individual claims against the broader interests of society."
As orthopedic surgeons, we need to continue to push for reform to bring relief from unreasonable and widely variable punitive damages and pain and suffering awards in malpractice cases. I feel this concept of health care courts may obtain wider support and should be tried simultaneously.
This approach seems to maintain patient rights, as suggested by the many patient- and consumer-rights groups supporting it.
And it may result in fairness in compensation. It is a concept that does not appear as self-serving for any one side that is being impacted by the billions of dollars of waste in our current system.
Physicians, hospitals and the public need to know there can be a reliable and effective evaluation of standard of care and untoward outcomes.
Douglas W. Jackson, MD
Chief Medical Editor