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House Committee Hearing on Health Courts Common Good General Counsel Testifies
July 13, 2006
On Thursday, July 13th, the Health Subcommittee of the House Committee on Energy and Commerce held a hearing titled, “Innovative Solutions to Medical Liability.” At the hearing, Common Good General Counsel Paul Barringer testified in support of health courts as a viable alternative to the current medical justice system.
Also testifying at the hearing were:
- Michelle Mello, Harvard School of Public Health
- Jim Wooten, Mayer, Brown, Rowe & Maw LLP
- Mrs. Margaret VanAmringe, Joint Commission on Accreditation of Healthcare Organizations
- Jeffrey O’Connell, University of Virginia School of Law
- Joanne Doroshow, Center for Justice and Democracy
- Cheryl Niro, American Bar Association
In his opening remarks, Committee Chairman Rep. Nathan Deal (R-GA) said that the hearing had been convened to discuss nontraditional reform proposals to cure a broken system in which “patients stand to hurt the most.” Chairman Deal and committee members from both political parties remarked that the high cost of malpractice insurance is no longer the only symptom of the "medical liability crisis." The crisis now also entails patients' diminished access to care as providers leave the field due to economic constraints.
Professor Michelle Mello, who is one of the lead researchers from the Harvard School of Public Health team that is collaborating with Common Good on a Robert Wood Johnson Foundation-supported project to develop a model for special health courts (read more about the project here), was the first witness to testify at the hearing. She raised three key points about the performance of the current medical liability system. First, the current system helps very few injured patients. Only 3-5 percent of seriously injured patients ever file a claim, and only half of those who file claims receive compensation. Second, the system “hemorrhages money.” In their most recent study, Mello and her co-investigators found that more than half of the money in the medical malpractice system is spent on administrative costs, a rate much higher than other administrative systems. Even workers compensation systems, which are known to be bureaucratic, have administrative costs of only 20-30 percent. Finally, the current system gives rise to “harmful side effects for medicine.” It encourages defensive medicine, and discourages the sharing of information necessary to improve patient safety and the quality of care. Mello endorsed the health court concept as one of the “most promising” alternative dispute resolution and compensation systems. She recommended that health court demonstration projects at the state level would be a good way to test this alternative.
Read Prof. Mello’s testimony here (PDF format).
In his testimony, Common Good General Counsel Paul Barringer reiterated the call for health courts as a “promising new model.” He detailed several elements of the evolving health court proposal, and explained how such a system would be an improvement over the current system. One key element of the health court model is the increased reliance on administrative compensation systems in order to improve efficiency, deliver compensation more rapidly, and create greater consistency. The health court model incorporates early disclosure and early offer programs, like the one currently used by the University of Michigan health care system, and would also use the concept of accelerated compensation events (ACEs), in which clear-cut cases of medical error are compensated quickly using a predetermined schedule. Should an early offer fail to be acceptable to a patient, cases would go before a special health court, in which a judge would issue a written ruling assisted by neutral experts and referring to evidence-based practice guidelines.
Notably, the health court system would use an “avoidability” standard – in which a medical injury is compensable if it could have been avoided had best practices been followed – which is a broader standard than negligence. Employing the avoidability standard will expand compensation and reduce the focus on individual physicians, in keeping with the fact that most medical errors today are the result of breakdowns in systems of care. Lastly, health courts would include links to patient safety structures so that information gathered in the adjudication process can be used to improve health care quality and patient safety.
Read Mr. Barringer's testimony here (PDF format): Summary, Full Testimony.
Mr. Wooten and Ms. VanAmringe both testified that the current system fails to support patient safety efforts and that improving patient safety should be an important part of reforming the medical liability system. Mr. Wooten emphasized that the tort system is an impediment to the free exchange of information on medical errors. He noted that improvements in patient safety will fail to occur without remedying the distrust between patients and providers that permeates the current system. Referencing the Joint Commission on Accreditation of Healthcare Organizations’ white paper “Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury,” Ms. VanAmringe called for creating a patient-centered compensation system that promotes open communication and a culture of safety.
Professor O’Connell highlighted two main problems with the current system. First, negligence is hard to determine, as supported by the relatively low rate of success for plaintiffs that actually reach trial. Prof. O’Connell’s own research has shown that less than 3 percent of closed claims involved gross negligence. Second, determining appropriate awards for pain and suffering or non-economic damages is difficult and inherently subjective, undermining the system’s equity and reliability. What the current system amounts to, according to Prof. O’Connell, is one where everyone is protected except the injured patient who needs compensation, especially those without the safety nets of health, disability, and life insurance. Instead, we have a system where the patient’s chances are akin to winning the lottery, waiting years to collect, and then giving one-third of their award to attorneys.
Read more about the hearing on the Committee's website.
To read about a separate recent hearing in the U.S. Senate on a bill that would create health court pilot projects, click here.
To learn more about health courts:
To find out how you can help support and promote health courts click here.
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