Government
Special Courts for Health Issues
By Cindy Wagner
Innovative solutions sought for medical lawsuits.
The case for specialized health courts is receiving new
support in the United States as an innovative solution for increasingly
complex medical liability lawsuits and other health-related cases. Such
courts could reduce the soaring costs of health care by lowering
malpractice insurance costs.
Doctors and lawyers are rarely cross-trained in each
other's professions, posing a problem when crucial decisions need to be
made that are beyond one's specialty. Fear of litigation may prompt
physicians to order excessive precautionary tests and procedures, while
judges with no medical training must weigh the testimonies of competing
experts.
Many health-care organizations, including AARP, are
calling for test projects for health courts, according to Common Good, a
bipartisan legal-reform coalition. In addition, six hospitals and
academic medical centers, such as those at Duke University and Johns
Hopkins, are considering serving as pilot health courts.
Presiding over health courts would be full-time judges
who are trained in health-care issues and who would define standards of
care in malpractice cases. According to Common Good, these courts would
also ensure that those patients who are injured by medical mistakes
would be reliably compensated--and not have to pay a third or more of
their recovered damages to their lawyers.
"Special health courts are intended not simply to
provide a better dispute-resolution mechanism, but also to provide a
foundation from which deliberate choices can be made to restore order to
American health care," Common Good chair Philip K. Howard told the U.S.
Senate Health, Education, Labor, and Pensions Committee in June 2006.
The ad hoc nature of medical disputes "decided jury by
jury" has led to distrust among the public and fear among medical
professionals, according to Howard. "Special health courts, by contrast,
can offer guidance on standards of care and the predictability needed
for trust."
From the admiralty courts of colonial times to today's
drug courts, specialization is a longstanding practice in many judicial
systems. Mental Health Courts, for example, create individualized,
long-term treatment programs for people who might otherwise be sent to
prison. The courts address both the health needs of the offenders and
the public-safety needs of communities.
Other courts with specialized jurisdictions include
youth or teen courts, domestic violence courts, community courts, and
truancy courts. But a specialty court such as the proposed Health Courts
would differ by encouraging innovative court practices, such as high
levels of judicial monitoring and cross-agency collaborations. In this
way, specialty courts serve more as "problem-solving" courts. In
Minnesota alone, the number of specialty courts grew from just two in
2002 to 28 at the end of 2006.
Special Health Courts are needed because no other issue
handled by the courts is "as complex as modern health care, and none is
more important to our society," Howard told the Senate committee. A key
issue is medical liability reform. "Accountability is inconsistent.
Inept doctors often keep their licenses while good doctors find
themselves liable on baseless claims. One out of four baseless claims
results in payment," notes Howard, citing a recent study published in
The New England Journal of Medicine.
The liability issue contributes to the skyrocketing
costs of health care because doctors and hospitals have to pay more in
insurance premiums. Health care now costs nearly twice as much in the
United States as in other developed countries, and insurance is
unaffordable for one out of seven Americans, according to Howard.
Improving the justice system thus could meet the goals
of improving health care and lowering costs. It could also speed up the
judicial process itself.
"The potential advantages of this system are enormous,"
according to Howard. "A court that writes opinions based on accepted
medical standards not only holds the promise of overcoming debilitating
distrust, but can provide affirmative guidelines for improving care."
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Health Courts |
Common Good recommends that
proposed Health Court pilot projects feature:
- Administrative law
judges who handle only medical malpractice disputes.
- Neutral experts drawn
from approved lists to advise the court.
- Schedules of damages to
be paid depending on specific injuries, so that
litigants stop litigating in the hope of higher damage
rewards.
- Transparency in
procedures, with preliminary work designed to resolve
claims with a minimum of time and legal costs. Lawyers'
fees would be based on time committed to a case rather
than a percentage of damages recovered.
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Sources: Common Good, 477 Madison Avenue,
7th Floor, New York, New York 10022. Web site
www.cgood.org.
The Center for Court Innovation, 520 Eighth Avenue, 18th Floor, New
York, New York 10018. Web site
www.courtinnovation.org.
