Health Courts Could Become Tort Reform Option

In his letter to congressional leadership on Tuesday, President Obama—under fire from the GOP for not better addressing tort reform in current healthcare legislation—called for funding alternative demonstration projects, such as health courts, for resolving medical malpractice disputes.

Health courts, virtually unknown in the U.S. but used in other countries, could provide an alternative to jury trials in current medical malpractice cases.

A nonpartisan group called Common Good, with support from the Robert Wood Johnson Foundation, has been working with a Harvard School of Public Health research team to develop a proposal for how the U.S. might establish a health court system.

Attorney Philip K. Howard, founder and chair of Common Good, calls the presidential announcement a "breakthrough" in light of the earlier "unwillingness" by the White House and Congress to be "very specific about liability reform."

"I think it's very important as we build American healthcare—toward something that is not only more inclusive and universal but more efficient and caring—to create a reliable system of justice that all parties can trust," says Howard, vice chairman of the law firm, Covington & Burling in New York.

"All you have to do is visit the doctor's office to feel the tension," Howard says. A "toxic atmosphere" has been created within practices that build upon "distrust of justice"—even with the most ordinary dealings.

"It's incredibly corrosive to the culture of healthcare delivery for doctors to go through the day with a little lawyer on their shoulders—whispering in their ears with every single interaction," he adds.