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Foreign Health Courts Could Serve as Model for U.S.

Janice Simmons, for HealthLeaders Media, March 9, 2010

In his healthcare reform proposal to Congress last week, President Obama—under fire from the GOP for failing to address tort reform—called for including up to $50 million to fund demonstration projects to test medical malpractice case alternatives such as health courts.

While health courts are not well-known in the U.S., several countries have systems in place that could provide alternative models to jury trials in malpractice cases.

Currently, one in four dollars spent on healthcare in the U.S. pays for unnecessary tests and treatments that physicians order to keep from initially being sued, according to a new poll of the nation's physicians released last week by Jackson Healthcare and the Center for Health Transformation.

The nonpartisan group Common Good, with support from the Robert Wood Johnson Foundation, has been working with a research team at the Harvard School of Public Health to develop a proposal on how a health court system might be established. Attorney Philip K. Howard, founder and chair of Common Good, said countries such as Sweden and New Zealand have no-fault compensation programs that take "the adversarial heat away" when a medical case is presented.

Health court supporters point to a number of advantages over the current malpractice system, including:

Avoidability. The Scandinavian countries—including Sweden, Denmark, Finland, Norway, and Iceland—use the concept of "avoidability" in their health courts. Avoidability—an idea that Sweden pioneered the idea in 1975—means asking whether an injury would have occurred had proper care been provided (rather than the American negligence standard).

In house claims adjusters and expert reviewers are used to determine the total award amounts. About 40% to 45% of claims are compensated, but the overall awards tend to be moderate. Sweden's Regions Patient Injury Insurance analyzes claims data and prepares presentations of patient safety issues for hospitals and regions.

Treatment injury standard. New Zealand's health courts have evolved from the U.S. concept of negligence to a treatment injury standard. Under New Zealand's Accident Compensation Commission (ACC), an individual may qualify for treatment coverage of an injury if it occurs as a result of treatment by a registered health professional (and sometime nonregistered health professional). Overall claim rates are low—about 3,000 claims each year.

New Zealand's Injury Prevention, Rehabilitation, and Compensation Act lists the health professionals whose treatment ACC can contribute toward. The individual's health professional (physician, physiotherapist, dentist, nurse, etc.) are encouraged to help patients fill out an ACC claim form and send it in.

The ACC has a patient safety division to identify priority areas for safety improvement and to perform safety analyses using a database. The ACC writes reports and distributes them to hospitals.


Janice Simmons is a senior editor and Washington, DC, correspondent for HealthLeaders Media Online. She can be reached at jsimmons@healthleadersmedia.com.

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