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Three Alternatives to Achieve Tort Reform

Cheryl Clark, for HealthLeaders Media, August 12, 2009

To a muffled rumble of boos from some American Medical Association members in June, President Barack Obama quashed doctors' hopes he would support a national cap on medical malpractice awards.

Caps, he said, "can be unfair to people who've been wrongfully harmed."

But might there be other palatable alternatives to achieve tort reform, mechanisms that would reduce if not eliminate many of the drawbacks in the current legal system? And might there be aspects in some of them that would appease not only Republicans, but Democrats as well?

In fact, there are three ideas that are being increasingly circulated.

The three concepts were explained in a New England Journal of Medicine Perspective last month by attorneys Michelle Mello, M. Phil, and Troyen Brennan, who also is a physician, of the Harvard School of Public Health.

Medical courts

"Medical courts," also called "health courts," are judicial systems similar to many other types of specialty courts where medically proficient specialist judges decide only on cases related to malpractice. There would be no juries, and thus no potential for attorneys to sway verdicts on the basis of theatrical emotional oratory.

Similar courts operate to decide cases involving specialized areas of mental health, behavioral issues, bankruptcy, drug addiction, worker's compensation, tax delinquencies, and many other kinds of troublesome legal issues. And these specialized judicial systems are generally regarded as a success for a variety of practical reasons. Mainly, these judges know complex medical treatment issues far better than their counterparts who may rarely be assigned such a case.

Disclosure and offer
Expansion of "Disclosure and offer" demonstration projects, in which providers would disclose the occurrence of caregiver-caused events that brought harm to patients and their families, and would promptly make offers of compensation.

Patients may or may not waive their right to sue, but in theory, they would not. The Harvard authors said that while he was a senator, Obama "co-sponsored legislation to promote this approach."

Safe harbors
Utilization of care standards created by the Federal Coordinating Council for Comparative Effectiveness Research, created by $1.1 billion in stimulus funds, could create "safe harbors" for physician and hospital practices that adhere to them.

If providers abide by these evidence-based guidelines, they would have "safe harbor" from liability. This kind of tort reform might even go farther than pay-for-performance experiments in getting providers to comply with best practices.

This strategy is incorporated in the recently introduced bill to establish the Health Care OverUse Reform Today Act (HealthCourt Act) by Rep. Tom Price (R-GA). The safe harbor would apply only to those physicians who abide by those nationally recognized standards of care.

This strategy also might avoid the expensive practice of defensive medicine, in which providers order a lot of costly unnecessary drugs, tests, and procedures out of fear they will be sued if someone decides the absence of such care caused a patient harm.

"Defensive medicine spurred by concern about malpractice liability is a substantial driver of the escalation of health care costs," wrote Mello, Phil and Brennan. "These costs are notoriously difficult to estimate," they added, "but trimming even 1% of total health care spending would save around $22 billion per year."

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