Health courts: Adding injustice to injury

By Carolyn B. Lamm

President, American Bar Association

When policymakers discuss alternatives to medical liability litigation, it is not uncommon for them to talk about the creation of a system of “health courts” to address issues of alleged medical negligence. Creating a health court system, however, will not make it easier for ordinary Americans to receive affordable quality health care and would, on an involuntary basis, take the issue out of the jury system -- a core facet of our system of government that has served our citizens well for more than 200 years.

The creation of a health courts system is touted as a silver bullet, but it does not strike at the heart of the matter – insurance and preventable errors. Creating a health courts system does nothing to ensure that medical insurance will be more affordable and it does nothing to prevent medical errors. Rather, it would automatically take medical liability cases out of the state court system – where cases are heard by judges and juries – and funnel them into a new system of tribunals that does not guarantee any compensation for injuries. This deprives those injured of a long-established remedy.

The American Bar Association firmly supports the integrity of the jury system, the independence of judges, and the right of consumers to receive compensation for their injuries – without any arbitrary caps on damages or denial of rights to a jury trial. The ABA also supports using and experimenting with forms of voluntary alternative dispute resolution techniques after a dispute has arisen in medical malpractice cases. A system of health courts, as currently being discussed, would not be voluntary.

If the intention is to improve access to health insurance and quality health care, those primary issues must be addressed at their core, not tangentially. For example, between 44,000 and 98,000 patients die in hospitals every year as the result of preventable medical errors. The landmark study that uncovered those numbers is now a decade old. And while the Quality Improvement Act of 2005 was a great step in the right direction for patient safety, there is more that can be done to reduce preventable medical errors. The ABA supports establishing programs that enable and encourage medical personnel to report “near misses” or hospital events that if repeated, threaten patient safety. These kinds of programs address both issues of liability and patient safety.

Some argue that there is a model for health courts in the current workers’ compensation mechanism. But requiring injured patients to become part of a new heath courts system based on this country’s workers’ compensation system is inappropriate. Within the workers’ compensation system there is a loss of a right to bring an action in court, but that loss is counterbalanced by a “guaranteed” award that is not fault-based. Meaning, all injuries are compensated. Not so with health courts.

Individual states can improve their tort laws, and the ABA supports a number of steps that should be considered. For example, state courts should be encouraged to make greater use of their existing powers to set aside verdicts involving non-economic damage awards that are disproportionate to community expectations; there should be strict enforcement of procedural and evidentiary standards and professional disciplinary codes that prevent meritless lawsuits; commissions should be created to annually review tort awards and publish guidelines to encourage uniform awards; and states should consider “apology legislation” -- legislation that provides that statements or conduct expressing apology, sympathy or condolence relating to the pain or death of a patient as the result of an unanticipated medical outcome are inadmissible as evidence of liability.

These steps can improve communication between doctors and patients, strengthen the public’s trust in the legal system and increase opportunities for parties to voluntarily resolve differences – all without eroding an injured person’s rights. The same simply can’t be said about health courts.

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