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Health courts touted to fix 'broken' system

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WASHINGTON—Interest in having medical malpractice disputes handled by special "health courts" appears to be growing, according to experts in the field.

For example, bipartisan legislation that would grant funds to states to test alternatives to the current tort-based system for resolving such disputes--the Fair and Reliable Medical Justice Act--was introduced in both houses of Congress in late May.

In addition, the American Medical Assn., while stopping short of endorsing the concept, late last month issued six principles it holds should be incorporated into any system of health courts to "fix the broken medical liability system" (see box).

In a statement hailing introduction of the Fair and Reliable Medical Justice Act, Will Marshall, president of the Progressive Policy Institute, and David Kendall, PPI senior fellow for health policy, explained how the proposed health courts would work. The PPI is a Washington-based think tank with ties to Democratic Party centrists.

"It would work like workers compensation where injured employees do not need to hire a lawyer to receive compensation in most cases," they wrote. "Patients would submit a claim form about an injury, and a health court review board would investigate and award compensation automatically if the claim fit a predetermined medical malpractice scenario. If the claim presented new or unclear circumstances, then the review board would steer the case to a full trial in a health court with legal representation for both sides. Specialized judges would preside over the health court and use court-appointed expert witnesses to provide a foundation for rulings on standards of care that should become legal precedents."

The heightened interest in health courts doesn't surprise Paul Barringer, the Washington-based general counsel of the bipartisan group Common Good. The group has been in support of having specialized courts adjudicate medical injury disputes for years, holding that such courts could provide speedier compensation to the injured than the current system.

"We've seen a lot of support from a range of different interest groups over the past few years, including health care providers," said Mr. Barringer.

"Ultimately, I think that interest is driven by the fact that all the parties recognize the need for fundamental reform, and that there is a need to explore alternatives," said Mr. Barringer. "We've seen a great deal of interest at the state level. There are proposals in a number of states."

He noted, though, that no state has established a health court.

In an interview last week, PPI's Mr. Kendall said the current system "leaves a lot of people with injuries" without any compensation. Because relatively few patients file claims, "there are weak incentives for improving safety."

Mr. Kendall said health courts would change the current debate between advocates of restricting access to compensation through what he called "arbitrary" caps on damages vs. defenders of the status quo.

"That's been the classic doctors vs. lawyers debate," Mr. Kendall said. "The public hasn't been involved in that."

He said he's "thankful that the AMA has begun to critically examine this issue." As with other health care issues, "we're coming to a point where things are so broken" that small fixes simply won't be adequate, Mr. Kendall said.

"We still believe that there is medical liability crisis," said Dr. William Hazel, a Herndon, Va.-based physician who serves on the AMA's board of directors. "We believe that the liability lottery really does not help patients who are injured. It does not help physicians. The payouts are unpredictable and the premiums go up. We believe that there is evidence that MICRA reforms work, and that still is our policy," he said.

MICRA--California's Medical Injury Compensation Reform Act enacted in 1975--caps non-economic damages in medical malpractice cases.

The AMA believes MICRA works, said Dr. Hazel. "But we're not blind, deaf and dumb, and we realize that the political likelihood of federal reform itself is challenging," he said. "We're looking at alternatives that may get us some fairness and equity in the system for both the patient and the physician."

He noted the interest some members of Congress, Common Good and others have in the health court concept. "We've looked at that in some detail and laid out some principles that should be followed if health courts are to be supported," he said.

However, an opponent of the idea said health courts would violate state constitutions while providing no benefit to injured patients.

"They're unconstitutional in most states," said Joanne Doroshow, president and executive director of the Center for Justice & Democracy in New York. "Health courts present injured patients with the same kinds of burdens of proof that they're currently faced with in court, but the health courts take away important protections that they have. For example, an unbiased judge, juries and other protections that courtroom setting provides. Then it establishes a schedule of benefits that can be politically influenced and chipped away."

Ms. Doroshow said creating a health court system would be "incredibly expensive."

"They would have to establish an entire new bureaucracy that currently doesn't exist to handle all cases," she said.