Three Major Endorsements of Health Courts

NEW YORK, Nov. 1, 2010 /PRNewswire/ -- Three major endorsements of health courts (also called medical courts) have recently emerged, as the nation grapples with ever-rising health care costs and the reality that better care at a lower cost is needed.

• In his October 28th column in The New York Times, David Brooks endorsed medical courts, writing: "Companies like Ford cut wasteful spending while doubling down on productive investment. That's exactly what the nation has to do over all. There have to be cuts, the president could say, in unaffordable pension commitments, in biofuel subsidies and useless tax breaks. But there also have to be investments in things that will produce a vibrant economy for our children: a simpler tax system with lower rates on investment; more scientific research; a giant effort to improve Hispanic graduation rates; medical courts to rationalize the malpractice system and so on."

• In the current issue of Esquire, the magazine's Commission to Balance the Federal Budget calls for the creation of medical courts. The Commission was chaired by MSNBC's Lawrence O'Donnell and composed of four renowned former U.S. senators: two Democrats, Bill Bradley and Gary Hart, and two Republicans, John Danforth and Bob Packwood. Following is the Commission's recommendation:  "Institute medical-malpractice reform through the establishment of medical courts. This proposal would establish medical courts -- similar to bankruptcy courts -- in which verdicts are made by judges trained to evaluate scientific evidence. As an alternative to the current trial-by-jury system for medical-malpractice lawsuits, this proposal would decrease the number of frivolous lawsuits that reach trial, increase the speed with which meritorious lawsuits reach trial, and reduce administrative costs for the federal judiciary. It would also discourage the practice of defensive medicine, whereby health-care providers, under the constant threat of litigation, often order unnecessary (and costly) tests and procedures to hedge against potential lawsuits."

• The bipartisan Committee for a Responsible Federal Budget endorsed health courts in a report titled "Let's Get Specific: Health Care", dated September 30th. The Commission is chaired by former Congressmen Bill Frenzel, Timothy Penny, and Charlie Stenholm and is based at the New America Foundation. An excerpt of the report reads:  "Enact Medical Malpractice Liability Reform. Though it is certainly not the main driver of health care cost growth, our broken tort system drives costs higher than they should be. Currently, the direct costs of malpractice liability -- including malpractice insurance premiums, settlements, awards, and administrative costs -- equal about 2 percent of health expenditures. More significantly, the current system encourages 'defensive medicine,' where providers order unnecessary medical services in order to avoid possible lawsuits. By giving providers and insurers more certainty, we can reduce both the direct and indirect costs of the tort system without significantly hurting overall health outcomes. We recommend creating 'health courts' made up of expert jurors who can better rule on whether a physician is liable for an injury, the extent to which he or she did or didn't follow best practices, and the appropriate award for a given injury."

The concept of health courts originated with, and has long been championed by, Common Good, working in conjunction with experts at the Harvard School of Public Health and with funding from The Robert Wood Johnson Foundation. Health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. As with similar administrative courts that exist in other areas of law -- for tax disputes, workers' compensation, and vaccine liability, among others -- there would be no juries. To assure predictability and fairness, each ruling could be appealed to a new Medical Appellate Court.

"Support is building for health courts, because they are essential to reducing costs and restoring the trust essential to safe and effective care," said Philip K. Howard, Chair of Common Good. "The trial lawyer lobby has so far blocked health courts, but momentum is building to put the public interest first."

Common Good (www.commongood.org) is a nonpartisan legal reform coalition dedicated to restoring common sense to America. The Chair of Common Good is Philip K. Howard, a lawyer and author of Life Without Lawyers and The Death of Common Sense.

SOURCE Common Good