Legal Affairs bills itself as "The Magazine At The Intersection of Law And Life." Their website has a weekly debate on legal issues, giving two individuals the chance to make one comment a day on the topic. The topic this past week?
George W. Bush is pushing an aggressive agenda for reforming medical malpractice law, with a focus on capping the amount of damages patients can be awarded if their doctors harm them. But some advocates suggest a completely different reform: "health courts." These jury-less courts would deal only with medical claims and be administered by trained healthcare professionals. This, supporters argue, might improve healthcare by providing quicker resolution to malpractice suits and limiting frivolous claims.
Are health courts a good idea?
I think that they have the potential to be a good idea, and that it would be wonderful to try out some pilot projects. A good friend of mine, who is a Phd/MD and one of the smartest people I know, had this to say about the problems our current system faces.
Patients (and juries) cannot distinguish between a "bad outcome" which can occur even when everyone does everything right, an accidental mistake (which anyone can make), and willful disregard of the standard of care (malpractice). Furthermore, many mistakes which occur are a result of both a flawed systemic process and an individual mistake.
Most catastrophic events are rarely the result of a single flaw or mistake, but rather the chance multiplicity of several smaller mistakes, themselves non-fatal, which together cause a disaster.
Stephanie Mencimer, who writes for The Washington Monthly and argues against the health court, would say that it is elitist to claim that non-medical juries are incapable of making distinctions between bad outcomes, accidental mistakes, and malpractice. Even if it is elitist, it very likely is true. I think that I am a pretty smart guy, but I'm sure that there are many cases in which I would not have the ability to make those distinctions. Besides, in a health court, the defenant would actually be tried by a jury of his or her peers, unlike in our current system. She makes a few other ridiculous claims, like suspecting that defensive medicine is a myth and that unnecessary tests are usually ordered to make doctors lots of money. Many health care providers that I have talked to make decisions every day on the basis of lawsuit avoidance.
Mencimer does bring up a few valid concerns relating to tort reform, however none of them are reasons to oppose the creation of a health court. She says that lawsuits "are a symptom of secrecy" and "distrust within the health care system." I think she is wrong about the reasons for that secrecy (she says the"direct financial incentive to keep their errors under wraps...far exceeds the penalties they might suffer through lawsuits"), but agree that secrecy is a problem.
I have heard "experts" say that most lawsuits are filed in order to get good information about their outcome. (I don't know if there is any empirical evidence for this, but it makes intuitive sense and there is plenty of anecdotal evidence) If there is a bad outcome, "risk management" encourages doctors to tell their patients nothing because anything they say can come back to haunt them in a lawsuit. Then patients, who do not know if the bad outcome is a result of malpractice or not, feels forced to file a lawsuit in order to get that information. A health court might reduce some of the fears on the part of doctors and hospitals that giving information to patients could harm them in a lawsuit, encouraging them to be more transparent in the event of a bad outcome, and reducing the number of lawsuits filed.
The other valid point she makes is critiquing the inclusion of plans to cap attorney's fees and cap non-economic damages. If health courts do a good job of discriminating between bad outcomes, accidental mistakes, and malpractice, then there is no need for these proposals. As Mencimer argues, capping fees, "rather than sav[ing] clients money, ...prevent[s] people from getting representation at all." Since taking on a malpractice suit involves the attorney spending their own cash to prepare the case, capping their contingency fees would increase the risk that the attorney would lose money on the case. And in an effective health court, a cap on non-economic damages would only protect doctors (and their insurance companies) who commit malpractice.
On balance, I believe that the argument for trying out a health court out is a good one.
In a future post I will talk about my perspective that this debate over tort reform, as it is played out in the media, is as much about doctors' distrust for lawyers (and lawyers' distrust for doctors) as anything else. It is interesting that the two professions have so much in common, both when they are at their best and when they are at the worst.
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