Health Courts May Provide an Answer

May 7, 2007, 1:23 AM, Posted by Nancy Barrand

RWJF Senior Counsel Jim Ingram has co-authored this post with Nancy.

What if we could have a rational, consistent medical justice system that resolved claims expeditiously?  What if the bulk of the money spent on the system went to victims instead of to legal fees, court costs and other expenses?  Finally, what if this new system could actually promote patient safety by bringing the causes of medical injuries to light rather than pushing that information underground?

People on all sides of the medical liability debate see the system as broken and have strong opinions on various fixes, and yet for years we have been unable to break through the gridlock to make meaningful headway toward new solutions.

Pioneer, through a cluster of grants, is exploring a new approach — administrative health courts. Precedence for such a specialized administrative court already exists in the form of bankruptcy, tax and admiralty courts.

While health courts offer many advantages over the tort system, we find the potential for gains in patient safety, as well as in quality and transparency of care delivery, to be the most compelling.

  • In a departure from today’s system, health courts would be overseen by judges dedicated full-time to addressing issues of medical injury.  They also would use court-appointed, neutral experts to testify on cases, and work from explicit compensation guidelines. Judges’ rulings would help set clear, consistent standards for future health care delivery, ultimately helping to improve care.

  • Health courts would use “avoidability,” rather than “negligence,” as the criterion for determining whether a medical injury is compensable,  The concept of negligence brings with it professional shame and guilt – an unintended effect is that many physicians are reluctant to disclose information about medical errors or injuries to their patients and to reporting systems.  The use of “avoidability” reduces some of the stigma surrounding medical liability and could help promote a culture of safety and disclosure among physicians.

  • The broader criterion of avoidability also means more victims of avoidable medical injury could receive compensation.  This alone is desirable and would also increase the availability of claims data for patient safety research.

For more than two years, with support from RWJF’s Pioneer Portfolio, the nonpartisan legal reform coalition Common Good has worked to design a separate specialized medical court system, calculate cost implications and determine compensation guidelines.  It also has led widespread outreach to educate stakeholders about administrative health courts, raising significant and broad bipartisan support for the concept. 

On a parallel track, researchers at the Harvard School of Public Health (HSPH) have developed a prototype for health courts and researched the viability and benefits of such a model (see resulting paper).

We are just beginning a second phase led by Common Good, in collaboration with HSPH and several other academic research partners. In this new phase, Common Good will (in addition to its national outreach and coalition-building activities), identify six states where there are favorable chances of successful reform, offer  technical assistance to interested parties within these states and support a state task force to develop a health court pilot proposal. Our goal is a successful health courts demonstration.

This is a high-risk proposition; there are entrenched interests determined to maintain the status quo.  What Common Good and its partners are working on, however, is worth pursuing…the health courts vision goes beyond incremental reform to promote a fundamental rethinking of the system.  With so much to gain in terms of transparency, efficiency, cost savings and patient safety, the time is right to test the viability of a state-based rational medical justice model.

We’re glad that Paul Barringer of Common Good and Michelle Mello and David Studdert of the Harvard-led research team have joined us in this initial exploration of the health courts model on Pioneering Ideas.  We look forward to their thoughts—and yours—on the prospects for a medical justice system that restores rationality and enhances health care quality and patient safety.