Tuesday, March 30, 2010

Can "Health Courts" Work?

Recently in a comment, Dr. Michael Kirsch proposed that "health courts" might be a beneficial reform to the medical malpractice system.
While I doubt that any recommendation will gain traction here, here is a suggestion. Maintain caps on non-economic damages, which I have supported in Ohio as we had no other available remedy. The acute flaw, in my view, is the absence of a meaningful barrier to sue innocent physicians. Establish a health court or panel that would determine if there is a reasonable basis to sue a doctor. If the panel agrees that there is a reasonable case for negligence, then the physican is sued. If the panel concludes that there is no reasonable basis, then this negative judgement should raise the bar for suing. If the plaintiff wants to sue anyway, even if the panel does not believe there is a reasonable case, then if the defendant prevails, his legal fees should be shared by the plaintiff and his attorney. This mechanism still preserves the patient’s right to sue, but raises the stakes for the plaintiff & attorney if they do so despite a conclusion by an impartial panel that a case should not be filed.
Given that Dr. Kirsch had previously commented, "I do not insist upon caps. I favor a system that makes patients 'whole' who have been injured by negligent care," it is not clear why he proposes damages caps as part of a solution.

If in fact Dr. Kirsch wants to be sure that victims of malpractice are made whole, it seems self-evident that damages caps would work in the opposite direction. I don't think any sane person would argue, for example, that a child who is rendered brain damaged or quadriplegic due to undisputed medical malpractice would be "made whole" by an award for pain and suffering that was capped at $250,000, but that's exactly what proponents of those caps have in mind. Damages caps also do nothing to stop so-called "frivolous lawsuits", as they're aimed at valid, high-damages cases and not at dubious cases or those likely to result in small awards or settlements. Experience has shown little to no effect on insurance premiums from damages caps.

One of the difficulties in discussing "health courts" is that no two people seem to agree on what a "health court" is, let alone what it should do. The name "health court" is often slapped on a bundle of proposed reforms or modifications to the current system, many or most of which could be implemented without creating a new court. Sometimes the term is used to describe an administrative court that would hear medical malpractice cases in a manner similar to the way workers' compensation cases are resolved. Sometimes the term is used to describe a specialized court in which the judge would have special training and there would be additional support from court-appointed experts or masters. Dr. Kirsch appears to be proposing some form of pre-suit screening or arbitration, with the parties having the option of proceeding into litigation if they don't like the outcome. It should be needless to say, but when no two people are on the same page, it becomes very difficult to address the overall concept of a "health court" as opposed to the merits of a specific suggestion.

Dr. Kirsch's proposal is that some form of "health court" or "screening panel" be created to review possible claims of malpractice. Were Dr. Kirsch to speak to a lawyer who handles malpractice claims, he would be aware that there is already intense screening of claims - claims for which damages are considered to be insufficient to justify a lawsuit (depending on the complexity of the case, the threshold may be over six figures) even where malpractice unquestionably occurred, where the medical evidence is insufficient to substantiate malpractice, where the patient confuses a bad outcome or bad bedside manner with malpractice... lawyers invest a great deal of time and money into malpractice litigation and are not interested in cases that are not likely to return a profit. The cost of taking a malpractice case to trial can easily run into the six figures, and is unlikely to be less than $30-$60K even when the liability is clear. The "certificate of merit" system, something that Dr. Kirsch correctly deems to be inadequate for filtering most cases, is in effect a $5,000 tax just to get through the courthouse door, and costs go up from there.

Right now, probably at least 19 out of 20 prospective malpractice clients are screened out by law firms (there’s no way to obtain a verifiable statistic). Some would-be plaintiffs will go from firm to firm to firm, trying to find a lawyer who will take their case, but in most cases results will be consistent. Yes, there are lawyers who don't have the skill or competence to properly review a malpractice case, and don't understand what's involved in taking one to trial, and sometimes they'll pick up a case that should never have been filed, with the likely result that the case is dismissed on summary disposition or settled for nuisance value. Most of those lawyers get their fingers burned, and learn to refer malpractice cases to specialists. For analogous behavior on the other side, we can turn to the world of cosmetic surgery, where some patients with obvious body dysmorphic disorder manage to find surgeons willing to, dare I say, mutilate them. Or doctors notorious for writing pain prescriptions to anybody who has the cash for an office visit. No profession is free of hacks or, more generously, people who don’t understand the complexity of a task they’ve convinced themselves they’re competent to perform.

What happens if you create an official screening system, no lawyer required, that allows anybody who believes herself to be a victim of malpractice to initiate a case? Most of the patients with strong cases will continue to be represented by lawyers. But the huge numbers of would-be plaintiffs ware are presently screened out? They'll be able to initiate a review without the assistance of a lawyer. Many will even be instructed of that right by law firms that are rejecting their cases - just as they presently caution rejected clients about statutes of limitation, as to do otherwise can constitute (did you guess?) malpractice. What will be the impact on the medical community of a proliferation of malpractice claims made through the health/screening court, most of which are groundless?

It’s also important to recall that cases aren’t screened solely on the basis of their merits. In order to be viable, a malpractice claim must be supported by an injury to the patient, and the injury must be likely to provide a return sufficient to cover the costs of litigation, a reasonable return to the attorney, and also to compensate the plaintiff. Claims that involve medical error but little or no harm would become viable in a system in which plaintiffs could represent themselves before “health courts”, resulting in findings of malpractice against doctors for errors that escape prosecution under the current system.

Of cases screened by a “health court”, what will happen when the evidence is ambiguous? That is, cases in which the nature of the available medical evidence (or lack thereof) leaves the panel unable to make a judgment call as to whether or not malpractice occurred? I assume that one of the expected benefits of the screening proposed by Dr. Kirsch would be to bring about a quick resolution, rather than having things drawn out through court hearings, discovery and depositions. But it's well-documented that the leading reason that marginal malpractice suits are filed is a lack of information on the part of the plaintiff:
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. Previous research has described tort litigation as a process in which information is cumulatively acquired.
As you increase the amount of discovery permitted by the screening court, you drive up costs for both sides and burdens on the doctor. But if you don’t permit discovery you’ll bias the system in favor of the doctor and to the detriment of injured patients, or at best will end up with a large number of useless determinations – “We don’t have enough information to assess this case” decisions that will, in effect, transform the “health court” into a waste of time and resources for everybody involved.

Dr. Kirsch did not describe the type of judge or panel that would constitute a “health court” or how they would be compensated. The system could be one involving a judge supported by experts, although if the experts are to be “neutral, court-appointed” experts the question is raised of “who pays them?” Similarly, the system could be a form of arbitration, perhaps with each side proposing an arbitrator, the arbitrators selecting a mutually acceptable third “neutral” arbitrator, and the decision of the majority carrying the day, but the question remains of how the arbitrators would be paid. If the cost is to be borne equally by the parties, it becomes a tax on litigation that is unduly burdensome to the claimaint.

One of the concerns raised by advocates of “health courts” is that they don’t trust juries to decide malpractice cases. The easy response is that juries are routinely trusted to resolve disputes that are more complicated, more scientifically involved, and carry greater consequences for the parties than a typical malpractice case. What makes malpractice so special that juries “aren’t good enough” to decide them? But truth be told, by the measure of independent screeners, when deciding malpractice cases juries “get it right” most of the time, tend to give small awards when they err on the side of the patient, and most importantly are far more likely to err on the side of the defendant doctor, wrongfully denying compensation to a patient who suffered injury due to malpractice. In the NEJM study:
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.
One of the interesting aspects of retrospective analysis by medical experts, as demonstrated in that study, is that they are more likely to find medical errors by physicians than are the juries who heard the cases. That is, it appears that all else being equal, a trained panel of experts will be harder on doctors than a lay jury. There are also studies suggesting that judges are more likely to find in favor of plaintiffs in malpractice cases than are juries, but I don’t give that type of study much weight as there are likely to be significant differences in the facts and issues presented in a case a plaintiff chooses to take to a bench trial as opposed to a jury. But it is fair to observe that having judges or “panels of experts” evaluate cases may result in a greater number of findings of “malpractice” than would occur as a result of jury trials.

Dr. Kirsch proposes that only the plaintiff would bear a consequence for proceeding with a case despite the ruling of a “health court”:
If the panel concludes that there is no reasonable basis, then this negative judgement should raise the bar for suing. If the plaintiff wants to sue anyway, even if the panel does not believe there is a reasonable case, then if the defendant prevails, his legal fees should be shared by the plaintiff and his attorney.
In Michigan, once discovery is closed, most tort cases go through “case evaluation” in which a panel of lawyers (one defense-oriented, one plaintiff-oriented, and one neutral) review cases and recommend resolutions. The panel can also find a case to be frivolous. If a party rejects the panel’s recommendation and proceeds forward with the case, but does not appreciably increase the value of the case at trial, the party can be held responsible for the other side’s fees and costs from the date of case evaluation forward. But that’s an even-handed system, applying to both plaintiffs and defendants.

Why does Dr. Kirsch propose that only the plaintiff and the plaintiff’s lawyers face a potential a cost for proceeding with a case following the determination of the “health court”? In cases where the “health court” finds malpractice and the defense proceeds to trial on any issue other than the dollar amount of damages, why not require unsuccessful defendants and their lawyers to cover the costs and attorney fees (including full, lawful contingency fees) of the plaintiffs, with insurance companies prohibited from reimbursing those amounts? If the panel also recommends damages awards, why not impose a similar sanction based upon the amount of the award against a party who doesn’t improve its position by at least 10% after rejecting the recommendation? Is the goal here to create a fair, balanced system, or to create a system that is skewed in favor of doctors?

It may be possible to create an effective screening system for malpractice cases, and it certainly should be possible to create one that is superior to the requirement of “certificates of merit”. But the costs of such a system must be affordable to the claimant, the screening court must have the ability to obtain and review information necessary to make a reasonably fair and accurate determination, and sanctions should apply equally to both sides.

Is such a screening system reasonably called a “health court”? Sure, in the sense that any juridical alternative to the present system that focuses on malpractice cases can be deemed a “health court”. But if it’s simply a form of pre-filing arbitration, I don’t think it lives up to that name. Unless and until there is some agreement on what a “health court” is and what it will do, demanding “health courts” as a “solution” to a perceived malpractice crisis does nothing to either advance the debate or solve the problems of the current system.

1 comment:

  1. No response from Dr. Kirsch. I'm so surprised.