Every physician knows medical malpractice claims are out of control. More claims are filed every year, and the average amount of awards has been steadily increasing — by as much as 500 percent over the last decade in some areas.
Meanwhile, increased claims and rising awards and settlements are driving the cost of medical liability insurance through the roof. Although many states have enacted legislation to cap awards, the effect has been to hold liability insurance costs at already inflated levels. Eventually those costs will rise again, or else insurers will stop providing coverage.
Everyone from legislators to insurers to physicians knows that something has to give. Even the president is on board with this kind of change. In a recent address to Congress, President Obama talked about the need to put patient safety first, let doctors focus on practicing medicine, and reduce unnecessary costs from medical malpractice. Under the directive of the president, the Department of Health and Human Services is funding a $25 million demonstrative initiative to explore new models that will reduce medical liability premiums.
So which model makes the most sense?
While the idea of specialized courts for malpractice claims isn’t yet on the table, they may soon have a place in the debate as tort reform gains momentum.
Imagine a specialty court that relies on educated judges, neutral experts, evidence-based proceedings, and a schedule of damages that not only keeps liability costs manageable, but also is better for patients. Sound too crazy to be true? It might be, but the idea has prominent supporters and a number of states are looking at ways to put this new malpractice system into practice.
Health court is now in session.
Not-so-blind justice
The idea of health courts isn’t a new one. “It’s a sort of new mutation of an older idea that really dates back about 20 years,” says Michelle M. Mello, JD, PhD, professor of law and public health in the Department of Health Policy and Management at the Harvard School of Public Health. “Virtually every academic commentator on health law agrees that administrative compensation is just much more promising than tort for remedying medical liability.”
It’s also an idea that has its basis in existing systems. Detractors such as the American Bar Association, which has come out publicly against the concept, claim that health courts deny patients access to a jury trial and full compensation. But specialty courts with presiding adjudicators already oversee areas such as bankruptcy, family law, and tax courts. Perhaps the closest comparison for the health court model is the workers’ compensation court system, where a judge or adjudicating panel hears testimony, determines the liability of employers, and decides on compensation awards.
Although there are various models under discussion, most ideas about health courts tend to focus on a few essential elements, which we’ll cover here.
Judges, not juries
Tort lawyers don’t want to talk publicly about it, but one of the problems with a jury trial for medical malpractice cases is that juries can be swayed by emotion. However, in the area of medicine — and especially when we’re talking about physician liability — what is desperately needed is a sober consideration of facts.
“Trial lawyers like to get in front of juries because juries are in some cases sympathetic,” says Michael D. Miscoe, JD, CPC, President of Practice Masters Inc., in Central City, Pa. “You venue shop — you look for venues that are more sympathetic and pay higher awards for a particular injury.”
Miscoe is a lawyer, a certified professional coder, and a compliance consultant who helps physicians avoid the types of documentation mistakes that sometimes end them up in court. In the area of medicine, getting the facts right is important — but juries don’t always understand those facts or their importance.
“Without any particular expertise in malpractice issues … you run the risk of seeing some of these insane awards for circumstances that kind of make you wonder whether our justice system is really working the right way or not,” says Miscoe.
