It is not clear who first suggested this not-so-new proposal. It has been kicking around for at least a decade. In any event the medical malpractice insurance lobby is currently pushing for it. Thus we need to examine the implications for attorneys and those of their clients who have a legitimate claim for medical and/or nursing malpractice. As with any pitch to modify the way of doing things in our society, we first need to identify who the proponents of such change are and evaluate the impact of their goals.
In this case we are seeing activity coming from the medical malpractice insurance lobby who are setting up shop state legislatures across the country because the new health insurance reform act provides $50 million to each state to set up pilot programs for reducing medical mistakes. Obviously med mal insurers are more interested in reducing the financial impact that it has on them. Thus we can surmise that the health court idea the way these insurance companies propose it is geared for reducing the payout for medical and nursing negligence with no concern for justice or malpractice prevention.On the other hand, there is a non-profit organization called “Common Good” (CG) whose stated mission is as follows:
“Common Good is a non-profit, non-partisan legal reform coalition dedicated to restoring common sense to America. By conducting polls, hosting forums, and engaging with leaders in health care, education, law, business, and public policy from across the country, Common Good is developing practical solutions to restore reliability to our legal system and minimize the impact of legal fear in American life.”It is not clear what the founders’ real agenda is since they state that they are “non-partisan”.
However, when we take a closer look at why CG is advocating for the formation of health courts, we see a different approach. They have pointed out that the legal system is the failure touting statistics like less than 20% of all malpractice cases have merit and that some 86% of the real victims never actually file suit. They cite the 1991 Harvard Medical Practice Study as the authoritative source for these outlandish claims. The answer to these problems, says CG is to establish health courts in every state. There would be a local review board in every jurisdiction to consisting of medical experts who would review and evaluate the circumstances leading to the injury.
In clear and uncontestable cases, the provider would be ordered to pay damages according to a compensation schedule. In this scenario the review board would also have the power to dismiss any case that it deemed has no merit. It seems that this proposal would virtually take medical and nursing malpractice out of the legal system altogether except for one shot at an appeal before a federal judge. The problem with relying on such statistics is that most cases settle prior to trial and the details are usually secret as a condition of the settlement.
Therefore, we have no way of knowing what the real percentages are. In general, the idea of specialty courts to handle specific problems, whereby judges develop expertise in adjudicating a certain type of case, is not new. We currently have in most jurisdictions divisions dealing solely with juveniles, families, matrimonial issues, mental health determinations, probate and the like. Thus, it would be a good idea to establish separate divisions for health care issues, which would not require restructuring the entire legal system. Judges should be required to demonstrate expertise in understanding standards of care. There would also have to be patient safety standards written into the legislation addressing certain problems including but not limited to the following:
1. Prevention of falls;
2. Prevention of bedsores;
3. Reasonable response time to patient calls for assistance;
4. Minimum nurse staffing requirements;
5. Minimum number of hours per day of direct patient care;
6. Medication administration safety protocols;
7. Patient identification procedures prior to surgery;
8. Medical equipment being in working order at all times.
Moreover, we need more stringent rules in error reporting requirements and full disclosure to patients or their significant others when a mistake has caused injury or death.In conclusion, if the goal for the common good is really to provide more accurate ways of identifying victims, providing fair compensation and preventing future never events, then there must be a more efficient way of defining standards of care and identifying whenever there is a breach.
There must also be a reasonable limit placed on the time for completion of discovery. Having cases adjudicated by a medical expert panel without regard to the rules of evidence would be grossly unfair to both sides. There must be an opportunity for the parties to examine the evidence before presentation before the court.
The proponents of tort reform operating from the standpoint that lawyers and lawsuits are to blame for runaway health care costs would do well to remember that the plaintiff lawyers have to invest thousands of dollars just to determine whether a case has any merit and that a trial will cost about $200,000. That serves as enough deterrent to keep away from frivolous claims.