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."
The American Medical Association's first choice is, of course, the cap on pain and suffering awards, such as the system in place in California since 1975. The Medical Injury Compensation Reform Act (MICRA) includes a $250,000 cap on non-economic damages, which the AMA says has lead to improved patient access to care, lower medical liability premiums, and lower healthcare costs throughout the state.
"Medical liability premiums increased more than 1,029% throughout the country from 1976 through 2007–except in California," where they grew by less than one-third of that amount, according to the AMA.
"Medical liability reform will help doctors implement best-practices in patient care and reduce unnecessary health costs," says AMA President J. James Rohack, MD.
While the AMA prefers caps, "we are committed to exploring innovative solutions like health courts, early disclosure and compensation programs, expert witness qualifications, and a liability safe harbor for physicians who follow evidence-based guidelines," Rohack says. "The goal is to keep physicians caring for patients, while still allowing access to the court system."
Non-economic damages like pain and suffering are just too difficult to accurately quantify and should be capped, or done away with entirely, agrees Darren McKinney, spokesman for the American Tort Reform Association, whose 300 members include hospital groups, governments, and pharmaceutical and insurance companies.
But caps are not on the table.
The medical court or health court idea is attracting considerable interest. And one arguing for its consideration is Philip Howard, founder and chair of Common Good, a New York City-based nonprofit dedicated to legal system change.
"The idea is that these would be administrative tribunals without juries, where judges would make written rulings applying established standards of care," Howard says.
"Unlike the system of arbitration, one of the main goals here is to achieve consistency. We're trying to fix the harm that's caused by the fear and distrust that has corroded the practice of healthcare, because doctors don't trust the justice system."
The United States is a backward nation in this regard, he adds. "Every other country in the civilized world has a non-economic damage by a schedule. In England, for example, it's 3,000 pounds if you lose a toe or a finger, and 300,000 pounds if you're paralyzed."
In the U.S., a birth defect can result in a huge variation of awards, even if the damage might not have been prevented, Howard says.
In a statement, the AMA said they are not averse to the idea of health courts. They "would provide a forum where medical liability actions could be heard by judges specially trained in medical liability matters and who hear only medical liability cases."
The AMA in 2007 "developed and adopted" health court principles to assist state and local governments, insurers, hospitals, and other entities interested in exploring this option for medical liability reform."
Howard says there are many reasons why the current legal system doesn't do a good job punishing those who commit malpractice and it fails at rewarding patients and families who are harmed.
Here are some other reasons why the system doesn't always work:
- Many plaintiffs can't find an attorney to represent them or don't have the money to pay a retainer.
- Plaintiffs rarely get anywhere near the amount of their loss, or if they do, about 60% of that money is allegedly eaten up by attorneys' fees and witness costs.
- Plaintiffs wait as many as five years for the results of a trial, and longer if it goes on appeal.
- There's a wide variation in judgments and verdicts, often depending not on the merits of the case, but on the skill of attorneys on either side, the disposition of the judge, the persuasiveness of the witnesses, and the demographics of the community and the jury.
- The specter of lawsuits has prompted some surgeons to decline to accept riskier cases out of fear that a bad outcome will damage their track record, as mortality rates are increasingly published on state regulatory agency Web sites.
In California, the Office of Statewide Health Planning and Development publishes heart surgery mortality rates for hospitals and surgeons. Some state medical boards also publish the amount of jury verdict awards and out-of-court settlements when amounts are out of line with the risk in that practitioner's specialty.
The bottom line, says Howard, is that the medical court idea deserves more consideration. "Modern healthcare is so complicated and scientific, it seems irresponsible to give that responsibility to ordinary judges, who would only see four or five cases a year, but to a judge who is dedicated to medical care."