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Congressional Hearings on Special Health Courts Common Good Testifies
July 13, 2006
Before an overflowing crowd, the U.S. Senate Committee on Health, Education, Labor, & Pensions held a hearing to consider bipartisan legislation that would create pilot projects for special health courts on Thursday, June 22nd. The bill (S.1337) - the Fair and Reliable Medical Justice Act - has been introduced by Senators Michael Enzi (R-WY) and Max Baucus (D-MT). The purpose of the bill is to restore fairness and reliability to the medical justice system by fostering alternatives to current medical tort litigation - including the creation of special health courts - that promote early disclosure of healthcare errors and provide prompt, fair, and reasonable compensation to patients who are injured by healthcare errors. Read more about the bill here.
Testifying at the hearing were:
- David Studdert, Harvard School of Public Health
- William M. Sage, Columbia Law School
- Philip K. Howard, Common Good
- Richard Boothman, University of Michigan Health System
- Susan E. Sheridan, Consumers Advancing Patient Safety
- Cheryl Niro, American Bar Association
- Neil Vidmar, Duke University School of Law
The first witness to testify at the hearing was Professor David Studdert, one of the lead researchers from the Harvard School of Public Health team that is collaborating with Common Good on a Robert Wood Johnson-supported project to develop a model for special health courts. (Read more about the project here.) Professor Studdert emphasized that traditional tort reform measures fail to improve patient safety and ignore the root problems in the current system.
Pointing to his most recent study on malpractice claims published in the New England Journal of Medicine (read more about the study here), Professor Studdert said that while the current system does a reasonable job at directing compensation to the right people, compensation is only one goal. More importantly, he suggested, the current system fails in four critical areas. First, the process is too costly. More than 50 percent of the money in the system goes toward overhead expenses, a much higher rate than other compensation schemes such as workers compensation. Second, only about 3 to 5 percent of injured patients have any contact with the legal system, leaving a large “invisible population” that the current system fails to help. Third, while it is difficult to estimate the cost, there is solid evidence that defensive medicine exists. Fourth, the current system is not compatible with efforts in quality improvement. Professor Studdert suggests that health court pilot projects would be an excellent way to evaluate whether alternative compensation schemes could provide better results. Click here to access Prof. Studdert’s testimony.
A second witness testifying to the failures of the current system was William Sage, MD, JD, a professor at Columbia Law School and a lead investigator on The Project on Medical Liability in Pennsylvania, funded by the Pew Charitable Trusts. Professor Sage underscored that the debate over medical liability caps is unproductive and does nothing to “stop the bleeding” caused by the disconnect between the medical malpractice system and the health care delivery system. According to Professor Sage, the malpractice system’s focus on individual providers does not reflect how medicine today is practiced by multiple actors within systems of care. As such, the liability system fails to support real improvements in patient safety and the quality of care. Click here to read Prof. Sage’s testimony.
In his testimony, Common Good Chair Philip K. Howard argued that we need to shift the discussion about medical liability reform away from capping damages and towards enhancing patient safety. According to Howard, the current focus on cutting rising malpractice premiums fails to address the underlying problem of healthcare quality and cost, and the debilitating distrust that has developed between doctors and patients. By promoting reliability and by facilitating quality improvements, health courts offer the best promise to correct these failings. Key features of special health courts would include administrative judges dedicated to malpractice disputes, advised by neutral experts and providing written opinions; liberalized standards of recovery; an expedited process with incentives for providers to make early offers; scheduled noneconomic damages depending on patient circumstances and injury; and coordinated patient safety systems to collect and disseminate information about adverse events and near misses.
Click here to read the full testimony by Common Good Chair Philip K. Howard. Click here to access PDFs of his testimony (Summary, Full Testimony, "Why Health Courts Make Sense").
Click here to access testimony by the other witnesses at the hearing.
Common Good is developing models for expert health courts based on research conducted at the Harvard School of Public Health with support from the Robert Wood Johnson Foundation. Read more about the project here. To learn more about health courts:
Support for health courts has been increasing every day, but we still need your help. We ask that you continue to help us get the word out, and impress upon your elected officials the importance of this effort. Some ways in which you can help are:
1. Send a note to your senators, especially if they are on the Health Committee. (Click here to find out if your senator is on the Health Committee.) Download a draft letter here in PDF or Word document format. Click here to find the contact information for your senator.
2. Notify your colleagues and friends by e-mail or fax and ask them to send letters to their senators as well. Click on the envelope icon on the top right of the page to e-mail this page.
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