June 27, 2006 – John McCormack agrees with many that the medical malpractice system needs to be reformed. Just donâ€™t take away his right to a trial by jury.
McCormack lost his 13-month-old daughter to a medical error in 2000 when doctors at the Childrenâ€™s Hospital in Boston postponed an operation to relieve fluid in her skull. Heâ€™s been fighting for accountability â€“ first for his family, and now for others â€“ ever since.
If some organizations and many politicians, physicians, and the healthcare and insurance industries get their way, however, McCormick says other victims of medical malpractice will have a more difficult time finding closure under a proposal to establish separate "health courts" outside the civil court system.
The book To Err Is Human: Building a Safer Health System, published by the Institute of Medicine in 2000, extrapolated that medical error kills between 48,000 and 98,000 people every year.
"We have a constitutional right to a trial with a jury, and theyâ€™re trying to take that right away from us, which I think is very unfair," McCormack told The NewStandard.
All sides of the debate over tort reform have suggested ways to fix a system that has thousands of medical-error victims waiting an average of five years for compensation and sometimes seeing none at all; doctors paying exorbitant malpractice insurance fees; and as much as 54 cents of every dollar of compensation going to cover the cost of lawyers, medical experts and courts. The concept of special health courts to rule on malpractice cases is being touted as the "third way" of reform.
The 15 largest insurers are taking in more than double the premiums accrued in 2000, while litigation payouts have risen by just about 5.7% in the same time period.
Last Thursday, the US Senate Committee on Health, Education, Labor and Pensions held a hearing to consider the Fair and Reliable Medical Justice Act, introduced by Senators Michael Enzi (R-Wyoming) and Max Baucus (D-Montana), which would, among other things, create health-court pilot projects.
Under the bill, the pilot health courts would reimburse victims of medical errors for 100 percent of their lost income. Victims would also receive a "reasonable" amount for remedial treatment and a "reasonable and appropriate" amount for rehabilitation. Non-economic compensation for "pain and suffering" would be doled out according to a fixed schedule.
Many backers of tort reform claim that high medical malpractice premiums, which have forced some doctors to abandon or reduce their practices, are a direct result of high tort awards to victims.
However, mounting evidence suggests the contrary. A study in 2005 by the Center for Justice and Democracy, a consumer advocacy group focused on defending the civil litigation system from tort reform, found that the 15 largest insurers are taking in more than double the premiums accrued in 2000, while litigation payouts have risen by just about 5.7 percent in the same time period.
Critics of the health-court idea point out, the outcomes of the cases would be determined by medically-trained judges who share a professional background with the defendants.
An independent review by researchers with the Harvard School of Public Health of 1,452 closed malpractice claims from five liability insurers determined that "portraits of a malpractice system that is stricken with frivolous litigation are overblown." In a paper published last month by the New England Journal of Medicine, the researchers wrote: "Although one third of the claims we examined did not involve errors, most of these went unpaid."
However, the researchers found that itâ€™s "substantially more common" for plaintiffs with real injury resulting from medical error to be denied compensation by the court system. "One in six claims involved errors and received no payment," wrote the researchers. "The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury." The study was funded by the US governmentâ€™s Agency for Healthcare Research and Quality and the Harvard Risk Management Foundation.
While some say health courts could fix a broken system, patients-rights advocates argue that the proposed courts would create a host of problems that would leave medical error victims with few protections and little recourse.
Dick Woodruff, a senior legislative advisor for the national public-advocacy coalition Alliance for Justice, warned that health courts would replace trial-by-jury with a "mandatory system that doesnâ€™t necessarily provide better protections than the current tort system." Woodruff added, "The public has a right to be able to use the civil-justice system."
The health-court system is modeled on special administrative agencies that adjudicate Workersâ€™ Compensation claims. A key difference is that claimants for Workersâ€™ Comp are not required to prove whose fault the injury is, just that it occurred. But claimants in health courts would have to prove that the harm was caused by actual negligence. And unlike Workersâ€™ Comp claims, with which most workers can eventually appeal to traditional civil courts, medical malpractice cases would be confined to the new health-court system.
â€œThe main goal [of health courts] is to make health care work better and to be cost-effective.â€
Additionally, critics of the health-court idea point out, the outcomes of the cases would be determined by medically-trained judges who share a professional background with the defendants.
The health-court system was the brainchild of corporate attorney Philip K. Howard of the law firm Covington & Burling. Howard says the concept blossomed out of a series of forums held with the Brookings Institution and the American Enterprise Institute, centrist and conservative Washington think tanks, respectively. In 2005, Common Good and Harvard School of Public Health were awarded a $1.5 million grant from the healthcare-focused Robert Wood Johnson Foundation to design a prototype.
Howard told The NewStandard, "The main goal is to make health care work better and to be cost-effective," adding that the structured payment system would provide malpractice victims with more consistent compensation, in contrast to widely varying awards determined by individual juries.
"This system would result in payment to many more injured patients, but it would get rid of the fear of the huge verdicts in situations when the doctor didn't do anything," Howard said, speculating that patients with less deserving claims would not be allowed to "get another million dollars for, quote, pain and suffering."
But others fear that the fixed award schedule is a quiet way of establishing a ceiling on awards.
"Those benefits are really nothing more than caps by another name," Woodruff said. How do you substitute the judgment of some bureaucrats over a case-by-case basis by a jury?"
Joanne Doroshow, executive director of the Center for Justice and Democracy, said, "The real fear here is that the catastrophically injured are going to get caught up in a reform that's going to hurt their ability to get adequate compensation."
While Howard said health courts would help alleviate an overburdened system, Doroshow predicted that defendants would be less likely to settle cases out of court under the proposed system in which exorbitant penalties are forbidden.
"If you take away the threat of litigation, you're actually going to make it more difficult for patients" to secure a settlement from defendants, Doroshow said.
Though they might not support the health-court model, patient-rights advocates do want to see reforms to ensure fairer and faster compensation for malpractice victims.
Woodruff said he would like to see a patient-safety database to protect against repeat malpractice offenders. Others propose a "no-fault" system similar to Workersâ€™ Compensation, which focuses on issuing reparations rather than judging liability.
But still others insist that the solution lies in a more fundamental overhaul of the healthcare system. McCormack, who knows first-hand the pitfalls of the medical system in the United States, said, "If they want to fix the medical malpractice system, they should fix the healthcare system instead of coming after the victims."