I appreciate all the comments that I receive on this blog on a variety of topics. I do read all the comments even if I do not immediately respond.

While my rant on Vioxx was about that specific case, the comments quickly developed into a malpractice debate. I have been admonished to be more clear as to my position, and thus this rant.

1. Malpractice victims should receive reasonable compensation.
2. Defining reasonable is our greatest challenge.
3. We need a system which gives both patients and doctors fair judgements with regard to alleged malpractice.
4. Insurance companies exist to make a profit.
5. Lawyers exist to make a profit.
6. Physicians exist to make a profit.
7. Name calling with regard to any of these 3 groups is not constructive.

I favor special health courts – Health Courts: A Better Approach to Malpractice Reform – as a way to increase the probability that victims receive compensation. Health Courts would do a better job of sorting out the facts – and likely generate less legal fees.

Among the primary goals of the tort system is compensation to those who have been injured. Yet, our existing medical malpractice system fails in this regard. According to the landmark 1991 Harvard Medical Practice Study, less than 2 percent of patients injured due to negligence ever file a malpractice claim. And only about one in 14 individuals with a serious injury (a disability lasting six months or more) is compensated.(1)

The existing system also functions very inefficiently. Much of the money in the system–more than 50 cents of every dollar–goes to attorneys, expert witnesses, and court costs rather than to injured patients.(2) Legal proceedings can drag on for years before patients receive anything. Most malpractice cases take between three and five years to resolve.(3)

Although the standard for liability in today’s system is negligence, compensation does not always go solely to patients who have experienced negligent care. To the contrary, the system does a relatively poor job in distinguishing negligent from non-negligent care. While plaintiffs who have been victims of negligence are relatively more likely to receive compensation, plaintiffs still receive compensation about a quarter of the time in cases where independent experts would say that no negligence occurred. A poor outcome, rather than negligence on the doctor’s part, is often the key fact in the determination of awards. And fewer than 20 percent of all claims are valid.(4)

Not only does our existing liability system fail to compensate many injured patients, it also fails to promote quality improvements. In 1999, the Institute of Medicine sparked a public outcry over errors in medicine with its report, To Err is Human: Building a Safer Health System, which reported that as many as 98,000 people die unnecessarily every year in U.S. hospitals due to medical errors.(5) The report concluded that the majority of errors in medicine are caused not by the fault of individual providers, but rather by breakdowns in systems of care.

To reduce the incidence of error, experts have concluded, more information must be reported about errors and “near misses,” those errors that do not result in harm. Only with data about such incidents can the root cause analyses be conducted which will help identify the processes and system breakdowns that lead to error.

However, as many commentators have observed, the current legal system impedes growth of knowledge about the epidemiology of near misses and errors in medical care. That is because physicians and other health care providers are reluctant to disclose information about mistakes–either to patients or to authorities–because of fear that such information could be used against them in litigation.

Studies show that what injured patients want most from the medical malpractice system are explanations and apologies. But fear of being sued makes doctors very reluctant to disclose information about failures and near misses. This fear of litigation also inhibits the culture of open communication and collaboration that experts identify as critical for reducing errors and fostering overall improvements in health care quality. Instead, doctors close ranks and practice in a way motivated around avoiding litigation (so-called “defensive medicine”)–which costs the nation billions in unnecessary health care expenses every year. Given this context, it is not surprising that doctors and health care providers have little trust in the legal system.

The Need for Health Courts

Health courts would help to correct these failings of our existing medical justice system by providing more consistent rulings on the standard of care that would promote greater communication about errors. The health court system–for which bipartisan support is growing–would increase the reliability of the medical justice system, while also helping to ensure that more injured patients receive compensation.

The hallmark of the health court approach is the use of trained judges who have health care expertise, akin to the use of specialized judges in federal tax court. Health court judges would be selected through a process that would ensure independence, such as being appointed by a nonpartisan screening commission. Continuing training and education would ensure that judges remained current in their understanding of health care issues.

The critical issue in most medical malpractice cases is whether or not the doctor complied with the appropriate standard of care. Juries make these decisions in our existing system, even though they generally are poorly equipped for this responsibility since trial judges have little or no health care expertise to instruct them in their deliberations. As a consequence, it is hardly surprising that jurors often reach different decisions based on similar fact patterns. The unreliability of justice that this creates puts providers in the difficult position of not knowing what it will take to avoid a lawsuit.

In a health court system, judges would make rulings about the standard of care as a matter of law. Of course, determining the standard of care can be a complex undertaking, given that there may be several reasonable courses of treatment in a particular circumstance. To help health court judges reach consistent decisions from case to case, judges would consider clinical practice guidelines based on evidence-based practice standards, such as the guidelines disseminated by the National Guideline Clearinghouse at the U.S. Agency for Healthcare Research and Quality.(6) With such guidance, health court judges would be in a better position to determine whether or not a doctor’s actions were reasonable.

One commenter accused me of being condescending about juries. I stand guilty. Justice is too important to be decided by sophistry, legal tricks and uninformed juries. We all have seen the problem of uninformed juries – take the Scrushy case for example.

I want specialists making these decisions. I do not want judgements made on how sympathetic the victim is, rather what did the physician do – was their an error in the process.

The threat of malpractice has a negative impact on patient care. Physicians order unnecessary test and obtain unnecessary consultations. Some areas of the country have lost specialists due to malpractice costs. Blaming the insurance companies is the preferred trial lqwyer tactic – but if malpractice insurance were that lucrative, we would see more competition in the marketplace. Insurance companies more likely leave the malpractice field than join it. There are more profitable types of insurance.

I urge this dialog to consider all patients. Even if the total of malpractice awards is appropriate (and I doubt that), we should all agree that the distribution is horribly skewed.

Finally, we know that the current system does nothing to lead to quality improvement. Health courts could both render judgements and trigger careful investigation of questionable physician behavior.

I hope that I have made my opinions clear. Thanks for reading.

Related posts:

1. Why no malpractice reform in the current bills?
2. Commentaries on malpractice
3. Random thoughts on malpractice
4. Malpractice – view from a health policy exam
5. How to save money in health care

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