Tort Reform Demonstration Projects?

September 10, 2009
Bob Keaveney

Last night the president said: "Finally, many in this chamber -- particularly on the Republican side of the aisle -- have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine..." What is this "range of ideas"? The president may have been referring to efforts, in 2006, to fund health courts in the states. This is a good idea but don't get too excited, tort reformers.

Last night the president said:

"Finally, many in this chamber -- particularly on the Republican side of the aisle -- have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. I know that the Bush administration considered authorizing demonstration projects in individual states to test these issues. It's a good idea, and I am directing my Secretary of Health and Human Services to move forward on this initiative today."

What is this "range of ideas"? The president may have been referring to efforts, in 2006, to fund health courts in the states. This is a good idea but don't get too excited, tort reformers.

UPDATE: It looks like the administration won't even go as far as health courts. The Post has some details. Still, I think health courts are worth exploring below.

Health courts are special courts designed to deal with med-mal claims.

In the meatime, here's what I can tell you. Though health courts can be set up in different ways, in most cases:

* The judges would be specially trained in medical issues.
* The medical experts would be neutral -- appointed by the court, not hired by the parties.
* There would be no jury. Findings of negligence, if any, would be made by the judge.
* Awards would be based on a "schedule" -- not a hard, one-size-fits-all cap, but awards would be predictable based on the nature of the injury. Like your fee schedule.

There is no doubt that such a system would go a long, long way toward injecting sanity back into the process of compensating injured patients while protecting doctors against abuse. So you can imagine how the Trial Bar feels about them.

I called the American Tort Reform Association. Here's what its spokesman, Darren McKinney, told me:

"We fully support the notion of health courts, or administrative boards that could fairly and consistently compensate people for the good-faith mistakes that people in every industry sometimes make." He said it's "not a bad thing" if the administration is moving even a little in this direction but he's skeptical that "demonstration projects" are anything more than smoke. "If health courts were to become the law of the land in every state -- hell, we'd be popping the champagne corks. But a few demonstration projects in a handful of states is like kissing your sister."

I have to say that I share his skepticism. But I'm open to being surprised.