Health courts, and how they can save our health care system

Common Good’s Philip K. Howard made it into the NY Times with an op-ed promoting health courts.

It’s a good piece, and covers familiar ground to regular readers of the blog.

He also cites the landmark 2006 NEJM study by David Studdert that I routinely refer to when talking about the current, flawed, state of the malpractice system (it’s like the gift study that keeps on giving): “According to a 2006 study in the New England Journal of Medicine, around 25 percent of cases where there was no identifiable error resulted in malpractice payments. Nor is the system effective for injured patients “” according to the same study, 54 cents of every dollar paid in malpractice cases goes to administrative expenses like lawyers, experts and courts.”

I pretty much agree with everything Mr. Howard writes, but, I’m afraid that health courts have little chance of gaining traction as the powerful plaintiff lobby will resist any change to the current jury system.

However, it’s always good to see publicity surrounding alternative means of resolving malpractice disputes.

No-fault malpractice insurance – my preferred option – as well as increased use of mediation remain two other choices.

The bottom line is that any of these alternative systems are better than what we have now. Both for doctors, and more importantly, for injured patients.

Comments

Anonymous
Great, another backdoor run at damage caps by the tobacco industry’s law firm, except this time we add more cost to the taxpayer too. Is anyone surprised that this isn’t getting traction, US Constitution aside?
Anonymous
If any of the malpractice reform groups were really interested in helping patients they would back no fault and push insurers to pay injured people faster. Wonder why they don’t?
Anonymous
“54 cents of every dollar paid in malpractice cases goes to administrative expenses like lawyers, experts and courts.”
Wouldn’t health courts have all the same things? Will they somehow be cheaper?
Anonymous
The Studdert study is indeed the gift that keeps on giving, but not like Kevin represents. From its conclusions:
“Frivolous litigation is in the bull’s-eye of the current tort-reform efforts of state and federal legislators. The need to constrain the number and costs of frivolous lawsuits is touted as one of the primary justifications for such popular reforms as limits on attorneys’ fees, caps on damages, panels for screening claims, and expert precertification requirements. Our findings suggest that moves to curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation. The vast majority of resources go toward resolving and paying claims that involve errors. A higher-value target for reform than discouraging claims that do not belong in the system would be streamlining the processing of claims that do belong.”
Also, Kevin misquotes the study, for it does not say “around 25 percent of CASES”, it says CLAIMS. An insurance claim does not mean a lawsuit was necessarily filed.
It further concludes: “Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them.”
Not sure that makes the case for health courts, unless there’s some evidence their admin costs will be significantly cheaper. Nor does it necessarily make the case for mediation (perhaps you meant arbitration, since mediation is nonbinding?).
Anonymous
One can read the full text of the study and judge for oneself here:
http://content.nejm.org/cgi/content/full/354/19/2024
Note this quote:
“Our findings point toward two general conclusions. One is that portraits of a malpractice system that is stricken with frivolous litigation are overblown. Although one third of the claims we examined did not involve errors, most of these went unpaid. The costs of defending against them were not trivial. Nevertheless, eliminating the claims that did not involve errors would have decreased the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls). In other words, disputing and paying for errors account for the lion’s share of malpractice costs. A second conclusion is that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter. In a sense, our findings lend support to this view: three quarters of the litigation outcomes were concordant with the merits of the claim.”
Not sure how Kevin can read that and think this study supports his position that our system is so bad and health courts would be better. Maybe he means no-fault?
Anonymous
Actually, Kevin, you did not misquote the study, you simply quoted Mr. Howard misquoting the study. For a more accurate summation of its findings, one should go to the horse’s mouth:
“Most claims involving injuries due to error received compensation (653 of 889 [73 percent]), and most claims that did not involve errors (370 of 515 [72 percent]) or injuries (31 of 37 [84 percent]) did not. Overall, 73 percent (1054 of 1441) of all claims for which determinations of merit were made had outcomes concordant with their merit. Discordant outcomes in the remaining 27 percent of claims consisted of three types: payment in the absence of documented injury (6 of 1441 [0.4 percent of all claims]), payment in the absence of error (10 percent), and no payment in the presence of error (16 percent). Thus, nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries. All results hereafter relate to the subsample of 1404 claims that involved injuries and for which determinations of error were made.”
Again, however, these are CLAIMS, not necessarily litigated cases.

Health courts, and how they can save our health care system

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