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MYTHBUSTER

HEALTH COURTS: BAD FOR PATIENTS AND UNCONSTITUTIONAL

Proposals for so-called “health courts,” which would remove medical malpractices cases from the court system, are all burdened with the same inherent problems.

• Replaces right to jury trial with a system that is biased against the patients.
  • Unlike other administrative compensation schemes, such as workers’ compensation, health “courts” are not “no-fault” models. Health courts are based on an “avoidability” standard, which is similar to negligence. In other words, in a health court, a patient would still have a high burden to prove, but would have none of the protections the legal system provides. And patients will find it harder to get an attorney.
  • o While proposals vary, in every health “court” scheme, the decision-making authority is put in the hands of either the hospital or insurer involved, or “experts” appointed and commissioned by a panel heavily weighted toward health industry representatives.1
  • o These proposals take critical decisions away from unbiased judges and juries, despite consistent empirical studies showing juries to be competent, effective, fair decision makers able to handle complex cases,2 and supported by the public as the best arbiter of disputes.

• Benefits slashed.
  • o Compensation for injuries under health “courts” will be determined by a “schedule” developed by political appointees (e.g., a certain amount for a lost eye or severed limb) instead of decided on a case-by-case basis by a jury. There is no room for consideration of circumstances for these types of injuries. As pointed out in recent congressional testimony by Duke Law professor Neil Vidmar, who has extensively studied medical malpractice, “Even when some leeway is built into compensation schedules, they cannot take into account the number of factors and extreme variability of pain and suffering, physical impairment, mental anguish, loss of society and companionship, and other elements of damages that fall under the rubric of non-economic damages. That is why these matters have been entrusted to juries. They provide justice on an individualized basis.”3
  • Like other administrative schemes, benefits will inevitably be reduced in future years as politicians try to appease insurers and hospitals, which in the case of workers’ compensation has left many permanently injured individuals barely able to survive.4

• Health Courts are unconstitutional. Almost every state constitution guarantees the right to trial by jury in civil cases and the right to access the court system for redress.5  Health courts require that patients give up these rights without any reasonable substitute.
  • Courts have held that it is only a fair trade for claimants to give up their right to jury if in turn they no longer have to prove fault, unlike the health “court” model.6 
  • At least 11 states have found other, less radical medical liability tort restrictions violate their state constitution’s right to jury.7 At least 12 more states that have upheld less egregious tort restrictions have indicated in their court precedent that removing a medical claim entirely from jury deliberation would be unconstitutional.8  Even more states have found less radical medical liability tort restrictions unconstitutional under due process review.9

• Health courts are both costly and inefficient, even for smaller claims.
  • o Medical malpractice cases currently constitute only about four percent of all tort cases in state civil courts (in thirteen states reporting),10 so removing them would provide only minuscule savings. At the same time, these cases would need to be resolved in a separate taxpayer-funded administrative system that must be built and maintained. Such a system would be similar to the workers’ compensation system, which is extremely costly and the costs have not been relieved by the recent reductions in benefits.11
  • o Duke Law professor Neil Vidmar recently testified that no matter the size of the claim, “medical malpractice cases involve complex issues that can only be sorted out after considerable investigation and discovery. When patients make claims of negligence the process of discovering whether negligence occurred requires investigating medical records, interviewing the involved parties (through sworn depositions), finding experts, sorting out conflicts between the opinions of experts, reinvestigating the records and testimony as new insights are uncovered and then reaching some kind of consensus, if possible, about what actually occurred and whether those facts meet the definition of legal negligence. This process takes considerable time as well as money. For complex cases the process of finding competent experts and getting them to review cases under their busy, over-booked schedules means that cases cannot be resolved in weeks, indeed even in months. Sometimes it takes years. Any competent defense or plaintiff lawyer who works in this area will confirm my assertions. To be fair to both sides, health courts will have to do the same thing. Health courts will also have to bear these transaction costs.”12

• Health courts would disrupt careful and balanced negotiation that takes place outside the courtroom to successfully resolve the vast majority of legitimate medical malpractice claims today.
  • More than 90 percent of cases are settled without jury trial, with some estimates indicating that the figure is as high as 97 percent.13
  • As Professor Neil Vidmar recently testified in the U.S. Senate, “Research on why insurers actually settle cases indicates that the driving force in most instances is whether the insurance company and their lawyers conclude, on the basis of their own internal review, that the medical provider was negligent.….An earlier study by Rosenblatt and Hurst examined 54 obstetric malpractice claims for negligence. For cases in which settlement payments were made there was general consensus among insurance company staff, medical experts and defense attorneys that some lapse in the standard of care had occurred. No payments were made in the cases in which these various reviewers decided there was no lapse in the standard of care.”14
  • Vidmar testified, “In interviews with liability insurers that I undertook in North Carolina and other states, the most consistent theme from them was: ‘We do not settle frivolous cases!’ The insurers indicated that there are minor exceptions, but their policy on frivolous cases was based on the belief that if they ever begin to settle cases just to make them go away, their credibility will be destroyed and this will encourage more litigation.15
  • Vidmar further testified, “Without question the threat of a jury trial is what forces parties to settle cases. The presence of the jury as an ultimate arbiter provides the incentive to settle but the effects are more subtle than just negotiating around a figure. The threat causes defense lawyers and the liability insurers to focus on the acts that led to the claims of negligencee.16

• Far from being “broken,” the current medical malpractice system works well.  This is true even according to the Harvard School of Public Health, which advocates Health Courts. They recently found that despite its costs, the current system works: legitimate claims are being paid, non-legitimate claims are generally not being paid, and “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”17  The authors found:
  • Sixty-three percent of the injuries were judged to be the result of error and most of those claims received compensation; on the other hand, most individuals whose claims did not involve errors or injuries received nothing.
  • Eighty percent of claims involved injuries that caused significant or major disability or death.
  • “The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.”
  • “Disputing and paying for errors account for the lion’s share of malpractice costs.”
  • “Previous research has established that the great majority of patients who sustain a medical injury as a result of negligence do not sue. … [F]ailure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.”
  • Patients “rarely won damages at trial, prevailing in only 21 percent of verdicts as compared with 61 percent of claims resolved out of court.”

• Rather than demonstrating a “broken” legal system, there are many reasons why some medical malpractice victims do not currently sue, and health courts will not change that. As Professor Neil Vidmar has indicated, these reasons include:
  • Patients may be unaware that their injury is a result of negligence since most injuries occur in hospital settings and it is difficult for the patients to determine if the injury or illness they experience following negligent medical treatment is the result of the condition for which they sought treatment or negligence
  • Even when they learn that malpractice has occurred, they are willing to accept that any negligence was not malicious on the part of the health care provider.
  • Some injured patients have alternative sources of support, like private health insurance or Medicare/Medicaid or income support from employers or welfare, and the same would be true under a health court system.

January 2007

NOTES

1 See, e.g., Peters Jr., Philip G., “Doctors & Juries,” U of Missouri-Columbia School of Law Legal Studies Research Paper No. 2006-33 Available at SSRN: http://ssrn.com/abstract=929474 at 44 (“[T]he public setting in which these experts will render their opinions could place considerable pressure on them to demonstrate their loyalty to the profession. As a consequence, these ‘neutral’ experts may show the same reluctance to label another physician’s care as negligent that physicians have exhibited in other settings. …[R]esearchers have found that physicians are so unwilling to label another physician’s care as negligent that they refuse to do so even when the treatment given to the patient was ‘clearly erroneous.’)(citations omitted).

2 For an extensive list of studies demonstrating the competence of juries, see, e.g., Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 10 (“The overwhelming number of the judges gave the civil jury high marks for competence, diligence, and seriousness, even in complex cases …Systematic studies of jury responses to experts lead to the conclusion that jurors do not automatically defer to experts and that jurors have a basic understanding of the evidence in malpractice and other cases. Jurors understand that the adversary system produces experts espousing opinions consistent with the side that called them to testify. Moreover, jurors carefully scrutinize and compare the testimony of opposing experts. They make their decisions through collective discussions about the evidence.… We also found that jury awards of prevailing plaintiffs in malpractice cases were correlated with the severity of the injury.”)(citations omitted); Peters Jr., Philip G., “Doctors & Juries,” U of Missouri-Columbia School of Law Legal Studies Research Paper No. 2006-33 Available at SSRN: http://ssrn.com/abstract=929474 (“Four important findings emerge from the data. First, negligence matters. Plaintiffs rarely win weak cases. They have more success in toss-up cases, and fare best in cases with strong evidence of medical negligence. Second, jury verdicts are most likely to square with the opinions of experts hired to evaluate the jury's performance when the evidence of provider negligence is weak. This is the very set of cases that most worries critics of malpractice litigation. Juries agree with expert reviewers in 80 to 90 percent of these cases - a better agreement rate than physicians typically have with each other. Third, jury verdicts are much more likely to deviate from the opinion of an expert reviewer when there is strong evidence of negligence. Doctors consistently win about 50 percent of the cases which experts believe the plaintiffs should win. Fourth, the poor success of malpractice plaintiffs in these cases strongly suggests the presence of factors that systematically favor medical defendants in the courtroom. The most promising explanations for that advantage are the defendant's superior resources, the social standing of physicians, social norms against ‘profiting’ from an injury, and the jury's willingness to give physicians the "benefit of the doubt" when the evidence of negligence is conflicting.”)

3 Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 18 (citations omitted).

4 See., e.g., Center for Justice & Democracy, Workers Compensation - A Cautionary Tale (September 20, 2006) http://centerjd.org/Workers'Comp(National).pdf

5 Colorado and Louisiana do not have such provisions in their constitutions, but have statutory provisions.

6 New York Central Railroad Co. v. White, 37 S. Ct. 247 (1917)(“The statute under consideration sets aside one body of rules only to establish another system in its place. If the employee is no longer able to recover as much as before in case of being injured through the employer’s negligence, he is entitled to moderate compensation in all cases of injury, and has a certain and speedy remedy without the difficulty and expense of establishing negligence or proving the amount of damages.”); Arizona Copper Co. v. Hammer et al, 250 U.S. 400, 432 (1918).

7 Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251 (Kan. 1988)(damage caps); Smith v. Dep’t of Ins., 507 So.2d 1080 (Fl. 1987)(damage caps); Lucas v. U.S., 757 S.W. 2d 687 (Texas 1988)(damage caps); Knowles v. U.S., 544 N.W.2d 183 (S.D. 1995)(damage caps); Lakin v. Senco Products, 987 P.2d 463 (Ore. 1999)(damage caps); Moore v. Mobile Infirmary Assoc., 592 So.2d 156 (Ala. 1992)(damage caps); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989)(damage caps); Lloyd Noland Hosp. v. Durham, 2005 WL 32404 (Ala. 2005)(periodic payment schedules); Condemarin v. University Hosp., 775 P.2d 348, 357-60 (Utah 1989) (liability limit for state hospitals); Wright v. Central DuPage Hospital Assoc., 347 N.E. 2d 736 (Ill. 1976)(medical review panels); Boucher v. Sayeed, 459 A.2d 87, (R.I. 1983)(striking down Reform Act under EPC, but in dicta doubting it would pass muster under jury trial challenge); Duren v. Suburban Comm. Hosp., 495 N.E.2d 51 (Ohio 1985)(damage caps).

8 Etheridge v. Medical Center Hospitals, 376 S.E.2d 525 (Va. 1989); see also Pulliam v. Coastal Emergency Services of Richmond, Inc., 509 S.E.2d 307 (Va. 1999); Lacy v. Green, 428 A.2d 1171 (Del. 1981)(“The parties remain free to call, examine and cross-examine witnesses as if the pretrial panel opinion had not been made . . . [the statute in question] cuts off no defenses, interposes no obstacle to full consideration of all the issues, and takes no question of fact from the jury.”); Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo. 1992); Kirkland v. Blaine Cty. Med. Ctr.,134 Idaho 464 (2000); Murphy v. Edmonds, 325 Md. 342 (1992); Peters v. Saft, 597 A.2d 50 (Me. 1991)(noting that even some damage caps may go to far by eliminating the remedy altogether); English v. New. England Med. Ctr., 405 Mass. 423 (1989); Wright v. Colleton Cty. Sch. Dist., 301 S.C. 282 (1990); Robinson v. Charleston Area Med. Ctr., Inc., 186 W.Va. 720 (1991); Evans ex. Rel. Kutch v. State, 56 P.3d 1046 (2002); Barret v. Baird, 908 P.2d 689 (Nev. 1995); Wiley v. Henry Ford Cottage Hosp., 668 N.W.2d 402 (Mich. 2003).

9 Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978); Carson et al v. Hitchcock Clinic, Inc., 424 A.2d 825 (N.H. 1980); Kenyon v. Hammer, 688 P.2d 961, 975 (Ariz. 1984)(finding right to access the court for a negligence claim is a fundamental right and therefore three-year statute of limitations was unconstitutional)

10 Examining the Work of State Courts, 2005, A National Perspective from the Court Statistics Project (2006) at 29.

11 See, for example, John M. Ostrowski, Testimony by Kansas AFL-CIO in opposition to SB 181, February 12, 2003.

12 Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 27 (citations omitted).

13 Ibid. at 17 (citations omitted).

14 Ibid. at 17-18, 22.

15 Ibid. at 23.

16 Ibid. at 21.

17 David M. Studdert, Michelle Mello, et al., “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” New England Journal of Medicine, May 11, 2006.