Answering some questions on special health courts

1) Would the plaintiff still be able to use testimony from his own expert witness? Or would these court-doctor’s opinions be the only ones heard?

I am guessing here – but I am certain that a plaintiff could ask for an expert witness. I have previously written about the problems of the current expert witness system – witnesses for hire. I suspect that special health courts would seek out (independent of the accused) true experts. Currently both sides work hard to find experts who agree with their side.

2) Who would pay for the panel of doctors, and how much would it cost? Why would it be less than the cost of a trial in the current system? If the court pays for them, then wouldn’t that make it so easy for a plaintiff to bring a malpractice claim that the court would be flooded with them? A lot of frivolous claims means a lot of state-hired doctor panels, which is a lot of taxpayer money…

The special health court would necessarily be a panel of doctors. It might be a panel of non-physician judges. Yes, plaintiffs will more easily be able to bring a claim – but (and here I make an assumption) the courts would have mechanisms for dismissing “frivilous claims”.

I believe the trial costs would not change significantly – but then I am no expert on legal costs.

3) Why can’t ordinary legal precedent set the standard of care for medical malpractice? Is it because medical technology changes too quickly for these precedents to be binding?

Darn good question – but how often do legal precedents travel from state to state. Medical science does change rapidly, and this has some influence. Some malpractice judgements start out incorrect – and lead to dangerous precedents (the best example is C-sections to prevent cerebral palsy – which does not work).

4) Why would doctors be more likely to admit mistakes in Health courts than they are in current courts?

I doubt that doctors will more likely admit mistakes. I also believe that Health courts will be less often fooled on both sides. I would expect an increase in successful claims.

5) What different method would be used to assess damages that they would be so much lower in health courts? Is there an idea of only partial compensation built into the health-court system, like workman’s comp or something?

I would suspect that special health courts would develop standards for non-economic damages – leading to consistency.

Why is it important that the mechanism for improving quality be tied to the tort system? No other industry works that way. For example, I believe NTSB findings are barred from being used in court. I’m not a lawyer, so my concern, like yours, is quality improvement. How come doctors focus so much on the legal system when they have so much of the current structure under their direct control (including medical insurers which are largely populated by physicians at the executive level)?

This is a complicated issue. Physicians are doing a great deal to improve quality. We have many active programs ongoing. (Example – Ambulatory Care Quality Alliance However, the biggest key is developing a system where physicians will admit mistakes. Our current malpractice system actually stifles open discussions of errors. Most physicians admit to paranoia concerning malpractice.

The one area they want to change so fervently is the one area that they have the least leverage and impacts cost the least. What about better technology (how many doctors have EMRs installed)? What about better measurements (why so much angst regarding P4P)? What about mandatory error reporting?

EMRs are coming rapidly. EMRs do cost money and time up front. As I write repeatedly, we run the only business in which charges and reimbursement is fixed. Thus, if we increase overhead, we cannot adjust charges to reflect our increased overhead. This is the hurdle that we must overcome in getting universal EMRs. However, EMRs have improved markedly in the past couple of years.

I have written about Pay for Performance often. We will have P4P soon (actually we already have it with some insurance companies). Physician angst over P4P comes from the belief that we do not have the right methods to judge performance. We must insure that P4P takes into consideration patient level data – not just administrative data. Moreover, we must insure that P4P covers the breadth of what physicians do, not just measuring “low hanging fruit”.

What about universal healthcare?

Many physicians support universal health care – but the phrase carries significant political nuance. Do you really mean government single payor system – then most physicians get nervous? Should we have universal legal care? Should we have universal housing?

What about more participation in developing practice guidelines? (One large IPA told me they had to beg doctors to participate.)

We have too many practice guidelines already – why is the IPA developing more? Guidelines sound great – but they do not always apply to our patients – please read my recent rant – A problem with guideline based therapy and P4P

What about dashboard measurements for hospital departments? Wouldn’t all/most of these be able to improve quality with less energy and more gain than malpractice reform, but all that physicians can agree upon is malpractice reform. The answer seems obvious to me; it’s the only one that doesn’t require self examination or sacrifice.

I suspect this answer will sound arrogant – but let me try anyway. Medical care is much more complex than most other activities. Patients do not come in standards – they have multiple disease, multiple opinions and desires. Many would like us to simplify our complex task into simple measurements. We can (and do) measure some things as guides – but in the end, we must individualize care at the patient level. We (physicians) fear oversimplification, believing that sometimes patient care will suffer.

=================

The entire issue of quality and malpractice is very complex. Physicians see the world through very different eyes than lawyers. We are unlikely to agree on many assumptions. Our world view differs so dramatically as to insure our quibbling. I hope we all want a better and more consistent health care system. But then, as I read our commentors, that is not the concern of the trial lawyer. If the health care system improves or deteriorates, the trial lawyer shrugs and considers that an externality. The trial lawyer is doing his/her job. I would like to change the system so that job does not consider the health care system an externality. But then I have been and remain an eternal optimist.