Anyone who watched this year's State of the Union Address, or for that matter, listened to the rhetoric of the Bush-Cheney campaign last year, knows that the GOP is about to launch a full-court (no pun intended) press for legislation to impose caps on jury awards in medical malpractice cases. This is a capricious "solution" to the capricious nature of the current medical malpractice system, in which a relatively small handful of plaintiffs and their lawyers earn huge awards while most people suffering injury from medical errors get nothing at all.
The underlying problem is that there are no clear and generally accepted legal standards for medical care to provide a basis for judging malpractice claims. As a result, juries are asked to do a job that the medical profession and the legal system can't do, which is to provide compensation and justice for injured parties in a way that encourages better health care in a consistent way. Arbitrarily limiting jury awards does nothing to address this problem, and indeed, could create perverse incentives for sloppy care. But there is a "third way" approach available, as presented in an important new report from the Progressive Policy Institute authored by Common Good's Nancy Udell and PPI's David Kendall: health courts.
The basic idea is to create state-administered specialty courts (similar to those that judge workers' compensation claims) whose primary goal would be to quickly and fairly provide consistent compensation for economic and non-economic losses caused by medical errors. The broader goal of the system would be to build up and publicly report a medically sound body of law on standards of care, while holding providers accountable to those standards. Health courts would replace the current system's reliance on dueling testimony by paid experts with court-appointed neutral experts, and would assure consistency by a set schedule of benefits, applied by specialty judges.
Health courts could simultaneously benefit individual patients, and all patients, present and future. As Udell and Kendall note: "Patients have the most to lose under the current system. Without clear signals from the courts about the steps doctors should take to prevent injuries, it should come as no surprise that between 48,000 and 98,000 patients die from medical mistakes in hospitals each year. Patients are also losing access to doctors in high-risk specialties such as obstetrics, particularly in states where malpractice insurance premiums are rising the fastest."
While health courts would be administered by the states, Udell and Kendall argue that Congress needs to jump-start the new system. "Congress should provide start-up funding for states to create health courts, and it should set federal guidelines to ensure that health courts are similar from state to state in their designs and procedures, in the schedules of benefits they use, and in the standards of medical practice they recognize," they write.
Aside from their usefulness in addressing the medical malpractice problem, health courts could also contribute materially to the ongoing "quality revolution" in U.S. health care, which focuses on overall patient health and the promotion of "good medicine" supported by clear standards and better use of information technology. This "quality revolution" has enormous potential to improve health care while reducing costs, in no small part by introducing true accountability for health care providers and insurers alike.
In terms of the current debate on medical malpractice, health courts offer a better option than the current system or an ill-advised effort to arbitrarily cap awards, potentially denying justice and fair compensation to millions of patients, including those who can and cannot get into court today. As Kendall noted at a PPI press conference unveiling the report: "Health courts would compensate most victims of malpractice who today receive nothing. By contrast, President Bush's cap on non-economic damages would limit victims' access to justice by making it harder for lawyers to recoup the high costs of pursuing malpractice cases. Instead of caps on a broken legal system, Congress should fix it with health courts."
