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ABA Health eSource
March 2009 Volume 5 Number 7

Health Courts: The Effect of the Proposed Facelift to the Current United States Medical Malpractice System on the Defensive Practice of Medicine and Related Healthcare Costs
By Brian G. Santo, Duquesne University School of Law, University of Pittsburgh School of Public Health, Pittsburgh, PA

AuthorIntroduction

Increases in medical liability insurance costs pose a major concern to those interested in controlling overall healthcare spending. High insurance premiums are often built into providers’ fees, contributing to the overall cost of healthcare. Many commentators assert that insurance rates and overall healthcare spending cannot be controlled without basic reform of the current medical malpractice system. 1

One reform measure proposes the implementation of “health courts,” an administrative compensation system for medical injury. The health courts model would utilize an administrative tribunal that would function outside the traditional judicial system, with specialized judges (rather than juries) awarding compensation in malpractice cases based on the finding of avoidability of injury, rather than the current negligence standard. 2 The decisions set forth would then result in a body of legal precedent by which providers could refer to in making patient care decisions. 3

The theory behind this model is that an established standard of care, along with uniform precedents and decreased concern over egregious compensation to claimants will reduce unnecessary and costly procedures currently being performed out of fear of litigation. 4

However, as will be discussed, the proposed savings are likely to be minimal, as the link between defensive practices and increased healthcare spending under the current tort system is primarily unfounded. Moreover, instituting practice guidelines and a database of legal decisions under the health court model will most likely serve of little practical use to practitioners in conducting their practice.

THE PROPOSED HEALTH COURTS MODEL

The concept of a system of specialized health courts was originally suggested in 2002 by Philip K. Howard, founder and chair of Common Good, 5 in which Howard suggested the use of a “special medical court.” 6 However the health courts model referred to today did not take form until 2006, when health policy experts at the Harvard School of Public Health partnered with the public interest organization Common Good and respected Robert Wood Johnson Foundation to draft a “prototype” and lobby for a system of specialized health courts. 7

The model comprises five core features. First, injury compensation decisions would be made by specialized judges sitting in specific tribunals outside the current court system. Second, reimbursement judgments would be based on a broader standard of care than the current negligence standard. Under this “avoidability” standard, claimants must prove that the injury would not have occurred if best practices had been followed or an optimal system of care had been in place. 8 Thus, they do not need to prove that care fell below the standard expected of a reasonable provider. 9

Third, compensation measures are based on evidence and guided by ex ante determinations about the preventability of frequent medical unfavorable events. 10 Proponents propose to create a list of “accelerated compensation events” (ACEs) to identify compensable claims. 11 The Common Good draft proposal states that “when an adverse event occurs, the hospital makes an initial determination whether the event falls within the class of adverse events covered by the system” and that its decision should be “guided by pre-established decision aids.” 12 Fourth, precedent from health court decisions will be converted to decision aids to allow expedited compensation determinations for injuries. 13 Moreover, this body of legal decisions, proponents assert, could be used by providers in referencing how to care for their patients in certain medical situations. 14 Finally, ex ante guidelines are also used to determine the amount of economic and noneconomic damages that should be paid. 15

ILL-CONCEIVED NOTIONS: THE DEFENSIVE PRACTICE OF MEDICINE

Proponents assert that the current tort system, specifically lack of a uniform standard of care, has led to the practice of defensive medicine – which is defined as “a deviation from sound medical practice that is induced primarily by a threat of liability.” 16 Such practices may involve supplementing care, replacing care, or reducing care of patients. 17 For example, a physician may choose to avoid performing a risky or life-threatening procedure for fear of a negative outcome and impending litigation therefrom. Common Good asserts that doctors order “billions of dollars of unnecessary tests and procedures each year” in order to protect themselves from malpractice liability. 18

However, there is evidence to dispute that assertion. The Office of Technology Assessment 19 found that a “relatively small proportion of all diagnostic procedures – certainly less than 8 percent overall – are performed due to conscious concern about malpractice liability risk.” 20 Two prominent law professors who conducted a study on the issue, David Hyman and Charles Silver, concluded that the evidence supporting claims of the defensive practice of medicine’s egregious costs to healthcare are far from conclusive and highly exaggerated. They quote from an article by Troyen Brennan and Michelle Mello, health court proponents at the Harvard School of Public Health: “Most defensive-medicine studies have failed to demonstrate any real impacts on medical practice arising from higher malpractice premiums.” 21 As to the overall effect on national healthcare costs, The Congressional Budget Office 22 determined through existing studies and its own research that savings from a reduction in defensive medicine would be minimal, with no statistically significant difference in healthcare spending per capita between states with restrictive limits on malpractice claims and states without them. 23

The Common Good and health court proponents also claim that the new system would reduce the so-called problem of defensive medicine. They say that the use of ACEs and a database of decisions would provide practitioners with direction on how to practice medicine correctly, thus alleviating their liability fears. 24 However, as explained infra, the belief that these measures would provide more significant direction to practitioners about what represents appropriate patient care than the current tort system consisting of jury verdicts, judgments and settlements lacks any substantial foundation.

Proponents of the health courts model also stress that ACEs would be beneficial by focusing on outcomes rather than on processes of care. 25 However, a list of avoidable outcomes would not inform doctors what practices they should follow to avoid the adverse results. Moreover, unlike the current tort system, where an adverse outcome is deemed reasonable if the correct process was employed, an outcome-based approach would not protect practitioners from liability on the basis that they had employed a correct process. 26 So physicians may still be incentivized to practice defensive medicine as they struggle to determine how to prevent an unfavorable result.

Another important benefit of health courts, according to their supporters, is that they would create a body of legal precedent, searchable via an electronic database, which providers could refer to in making patient care decisions. However, such a database would provide little practical use, as “the nature of medical practice raises questions about the feasibility of developing a body of legal precedent concerning the appropriate standard of care.” 27 The specific circumstances of each case make it difficult to draw general conclusions concerning the appropriate standard of care, and “as medical knowledge and technology rapidly advance, a ‘precedent’ concerning the standard of care could quickly become obsolete.” 28 The Progressive Policy Institute, 29 acknowledging this dilemma, stated that “health courts would consider medical practice guidelines in the context of each case, according to the individual needs and characteristics of patients. 30

CONCLUSION

During my tenure as a baseball player in the Detroit Tigers organization, I personally witnessed the practice of defensive medicine. Trainers and team physicians alike performed and ordered excessive tests on players to avoid the potential for liability, and admitted as much. However, sometimes the old axiom “better safe than sorry” applied. In a few instances, what was thought of as a minor injury was indeed more serious and was diagnosed by the extra procedures. Health courts, ACEs and case databases are not necessarily the solution to the problem of increased healthcare costs in this country. Following fixed rules in order to avoid liability may ultimately sacrifice the accuracy and quality of care that comes from individualized handling of specific medical cases.

However, such rigid standards of care may be inappropriate in the medical field, and may lead to a continuation of the practice of defensive medicine. Rather, perhaps progress towards decreasing the defensive practice of medicine would be achieved if resources were directed towards adjustment of society’s litigious attitude.

1 Natasha C. Meruelo, Mediation and Medical Malpractice: The Need to Understand Why Patients Sue and a Proposal for a Specific Model of Mediation, 29 J. Legal Med. 285 (2008).
2 Michelle M. Mello, David M. Studdert, Patricia Moran & Edward A. Dauer, Policy Experimentation with Administrative Compensation for Medical Injury: Issues Under State Constitutional Law, 45 HARV. J. ON LEGIS. 59 (2008).
3 Maxwell J. Mehlman & Dale A. Nance, Medical Injustice: The Case Against Health Courts, 3 (American Association for Justice 2007).
4 Emily Chow, Health Courts: An Extreme Makeover of Medical Malpractice With Potentially Fatal Complications, 7 YALE J. HEALTH POL’Y, L. & ETHICS 387, 409 (2007).
5 The Common Good is a non-profit, non-partisan legal reform group that has engaged with leaders in health care, business and public policy to develop “practical solutions to restore reliability to our legal system and minimize the impact of legal fear in American life.” Common Good, http://commongood.org/learn.html . February 25, 2009.
6 Mehlman, supra note 3, at 11.
7 Philip Peters, Jr., Health Courts, 88 B.U.L. REV. 227, 235 (2008).
8 Michelle Mello, David M. Studdert, Allen B. Kachalia, and Troyen A. Brennan, “Health Courts” and Accountability for Patient Safety, The Milbank Quarterly, Volume 84, Number 3 (2006).
9 Id.
10 Id.
11 Mehlman, supra note 3, at 68.
12 Common Good, Design of a ‘Health Courts’ System Demonstration, 1, 16 (Oct. 17, 2005).
13 Mello, supra note 2 .
14 Mehlman, supra note 3, at 69.

15

Mello, supra note 2.
16 David M. Studdert et al., Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment, 293 JAMA 2609, 2609 (2005).
17 Id.
18 Common Good, An Urgent Call for Special Health Courts: America Needs a Reliable System of Medical Justice (2005), http://cgood.org/assets/attachments/130.pdf. at 2.
19 The Office of Technology Assessment (OTA) was an office of the United States Congress from 1972 to 1995. OTA's purpose was to provide Congressional members and committees with objective and authoritative analysis of the complex scientific and technical issues of the late 20th century. The OTA Legacy, http://princeton.edu/~ota/. February 25, 2009.
20 Deborah L. Rhode, Access to Justice, 33 (Oxford University Press US 2004) ( quoting Office of Tech. Assessment, U.S. Cong., Defensive Medicine and Medical Malpractice (1994)).
21 David A. Hyman & Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?, 90 CORNELL L. REV. 893,937(2005) ( quoting Michelle M. Mello & Troyen A. Brennan, Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 TEXAS L. REV. 1595, 1606 (2002)).
22 Established in 1972, the Congressional Budget Office is the primary congressional agency charged with reviewing congressional budgets and other legislative initiatives with budgetary implications. Congressional Budget Office, http://www.cbo.gov/, February 25, 2009.
23 Chow, supra note 2, at 409 ( quoting Cong. Budget Office, Limiting Tort Liability for Medical Malpractice 1,6 (2004)).
24 Mehlman, supra note 3, at 68.
25 Id.
26 Id.
27 Catherine T. Struve, Expertise in Medical Malpractice Litigation: Special Courts, Screening Panels, and Other Options, Pew Charitable Trusts 70 (2003).
28 Id.
29 The Progressive Policy Institute (PPI) is an organization dedicated to modernizing progressive politics and governance for the 21st century. A supporter of the health courts model, the organization released a 2005 policy report calling for "a new network of specialized health courts that would replace America's broken justice system." Common Good, http://commongood.org/ healthcare-newscommentary-inthenews-224.html . February 25, 2009.
30 Mehlman, supra note 3, at 70 ( quoting Nancy Udell & David B. Kendall, Health Courts: Fair and Reliable Justice for Injured Patients, PROGRESSIVE POL’Y INST. POL’Y REP. (Feb. 2005)).

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