Could Health Courts Provide An Answer on Malpractice Reform?

    • October 23, 2009

In the debate over how best to reform America’s health care system, there has been continued discussion about whether and how to include medical liability reform.

One liability reform proposal that is receiving increasing attention is the creation of a system of specialized health courts, which would apply rational, consistent standards to resolving medical liability claims and compensating injured patients.

The Robert Wood Johnson Foundation has supported Common Good, a nonpartisan legal reform coalition, and collaborators at the Harvard School of Public Health to build the research base and policy consensus for a health court system. Under the system, judges and neutral experts with knowledge of health care issues would produce written rulings and consistent judgments that would be fairer for patients and doctors alike.

Legislation to finance health court pilot projects has been introduced at both the federal and state levels in recent years and has been considered as an option during ongoing health care reform negotiations. We believe a health court pilot project should be given serious consideration under the Administration’s recently announced $25 million for pilot projects to test solutions for medical liability and patient safety.

In a piece for the New York Times, Philip K. Howard, Common Good’s founder and chair, provided this argument for health courts:

America needs special health courts aimed not at stopping lawsuits but at delivering fair and reliable decisions. A special court would provide expedited proceedings with knowledgeable staff that would work to settle claims quickly. Trials would be conducted before a judge who is advised by a neutral expert, with written rulings on standards of care.

With a special health court, damages would consist of all lost income and medical costs, plus “pain and suffering” based on a set schedule depending on the severity of the injury. All information about each incident, including details learned in settlements, would be compiled and disseminated so that doctors and hospitals could learn from their errors. Proponents of special health courts have estimated that the total cost of such a new liability system would be about the same as the existing system—less than 2 percent of America’s total health care costs. One benefit would be that the quicker, streamlined system would compensate far more people, with drastically lower legal costs. Most important, it would restore faith in the reliability of medical justice.

Regardless of how the current debate unfolds, we believe that health courts are a promising approach to bring greater reliability, efficiency, and equity to America’s medical liability system.