Health Courts Would Curb 'Staggering Waste,' Attorney Says

Philip K. Howard, JD, founder and chair of a Washington D.C.-based government reform organization named Common Good, and whose trustees espouse the spectrum of political views, from conservative Newt Gingrich to liberal Bill Bradley, is convinced that the government can make a major push to curtail the high cost of malpractice litigation.

He's not joking.

The creation of health courts would erode this bane of physicians' practices, and make a major dent in the costly toll malpractice has on healthcare, he argues. Health courts—specialized, fast-paced, administrative courts—would speed the resolution of malpractice suits, which are currently mired in the slow, plodding "regular" courts where litigation drags on for years.  

These specialty courts for healthcare matters also could help establish standards that would thwart the use of costly "defensive medicine" that physicians enlist to offset litigation in the first place, Howard says.

"Health courts are aimed not at stopping lawsuits, but at making medical justice reliably distinguish between good care and bad," Howard wrote this month in the Health Affairs blog. "They, therefore, hold the key to eliminating the staggering waste of defensive medicine better than any other proposed reform."

Howard, a partner in the Covington & Burling Washington D.C. law firm, founded Common Good in 2002, which, he says, is "advising federal, state, and local officials on government overhaul, regulatory reform and elimination of obsolete laws."

A veteran advocate for government reform, Howard now embraces the challenge of changing the face of healthcare. He insists that healthcare has little choice but to move toward health courts—possibly modeled after similar programs in Europe—to reduce costs estimated at $45 billion at the very least.

"The whole point of health courts is to abandon the ad-hoc jury-by-jury approach and create a system of justice predicable from case to case," Howard tells me. "That's the only way you get rid of defensive medicine: Have written rulings by judges."

Howard says Common Good is working with the Harvard School of Public Health and has received funding from the Robert Wood Johnson Foundation to advance the project. He also says the concept is increasingly drawing attention because of the necessity to deal with "out-of-control costs."

Despite their differences over healthcare reform, both President Obama and his GOP challenger, Massachusetts Governor Mitt Romney have endorsed such proposals, the first presidential candidates to do so, according to Howard.

In a letter to bipartisan leadership of the House in 2010, Obama wrote that his healthcare reforms included a provision "that authorizes funding to states for demonstrations of alternatives to resolving medical malpractice disputes, including health courts." Obama said bills were sponsored in the House and Senate for demonstration projects of the proposals.

In a commentary this year in USA Today, Romney stressed the need for malpractice reforms.  "We need to address out-of-control medical malpractice litigation, which is costly not only in direct terms but also in its distortion of the way patient care is administered," the presidential candidate wrote. "We can start by capping non-economic damages, but the federal government should also encourage states to pursue additional reforms such as specialized health care courts."

There is widespread public acceptance of the proposal: Of 1,000 registered voters, 66% supported the idea of creating health courts to decide medical claims, according to a nationwide poll in April by Clarus Research Group.

At least 75% believed that lawsuits and legal fees are a major cause of high medical insurance rates. Another 68% said "plenty of good doctors are leaving the practice of medicine because of the number of lawsuits and cost of liability insurance."

Despite the Obama and Romney endorsements, Howard says, the issue of health courts has not been discussed in the debates by either the president or his challenger, and that is not surprising, since the "big picture" issues of Medicare costs and health insurance are so dominant.  

Under the Common Good plan, health court judges would be dedicated full-time to resolving health care disputes, he says.  "So instead of (a litigant) going to a general trial court that would take five years to settle, [he or she] would go to an administrative court, like a workers' administration tribunal, and it would be much quicker, " he says.  A lot of cases would be resolved long before trial, Howard adds.

"A whole standard from the health care courts would create a predictable string of jurisprudence based on standards of medical practice" and further reduce time-consuming litigation, Howard says. There is precedence for judicial specialization. There are currently administrative courts that address taxation, immigration decisions, and child custody.

While tort reform has been initiated in several states to reduce damages stemming from civil suits, Howard contends that those efforts do not erase the patchwork of various legal standards where a jury could find liability in one case, while a separate jury—dealing with same general facts—could find no liability. An administrative court for healthcare could set the stage for more efficient practices, he says.

Trial lawyers have opposed the concept, which Howard says is not surprising, since those lawsuits put plenty of money in their pockets. The lawyers say it's not just about the money, however.

In a 2007 study  professors Maxwell Mehlman and Dale Nance of Case Western Reserve University in Cleveland, Ohio characterized the health courts idea as an attempt to eliminate or reduce the rights of injured patients. Among other things, they wrote that "many valid claims would be arbitrarily limited or barred altogether" and "wrongdoers would not be held accountable."

Indeed, Howard says that while some Democrats and Republicans in Congress have initiated legislation for health courts, those efforts have stalled on Capitol Hill.

"There were a number of provisions for health care courts and they all got killed (by Democratic leadership) because the trial lawyers used their influence to block them," he says. "The political environment has to be such that there is an imperative to control costs, and that will have to trump the political influence of the trial lawyers. It's really that simple."

Within the next four years, either Obama or Romney will have no choice but to work on bending the healthcare cost curve, and health courts are a big step in that direction, Howard says. "The next Congress or next president is going to have to deal with those issues," he predicts.