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.

A special health court proposal could be structured to fit certain situations at the state level, Howard says. One option at the state level is a pilot program for compensating certain types of injuries outside the tort system. With another approach, healthcare providers could create a voluntary program that links error disclosure with structured arbitration and a predictable process for determining damages.

Overall, one of the health court system's strong points is reliability and consistency, Howard says.

"The current system is based on kind of an ad hoc mode. One case with a set of facts is decided one way. The next case, with exactly the same set of facts, is decided exactly the opposite way. There's no consistency from case to case," he adds.

Another key area is speed—"both for patients and for physicians," Howard says. Action on the case would take place immediately—not years later.

In addition, patient safety is a factor, he says. "In our system, all of the data from settlements and cases gets fed back into the system so people can learn from their mistakes."