The health courts facade: tort 'reformers' tout health courts as an administrative solution to medical negligence claims. But the proposals are not likely to be effective - and may cause more harm than good.

For 30 years, the insurance industry and other special interests have been trying to force people injured by medical negligence, defective products, fraud, and other misconduct to waive their Seventh Amendment right to trial by jury and have their disputes resolved outside the court system. Now, yet another proposal to dismantle the jury system is floating around the halls of federal and state legislatures.

The plan, euphemistically known as "health courts," would force all medical malpractice cases into a new administrative structure based on the workers' compensation model and eliminate the right to trial by jury. Proponents tout health courts as being good for patients, but nothing could be further from the truth.

The concept is being pushed heavily by Common Good, an organization with a decidedly anticonsumer history on liability issues, so some healthy skepticism of the proposal is warranted. Common Good was founded in 2002 by Phillip Howard, a senior corporate advisor and strategist in the New York City offices of the Covington & Burling law firm.

Not only has this corporate firm represented industries--like tobacco and chemical--that produce poisonous products, it also is one of the principal architects of the tort "reform" movement. (1) In fact, throughout the 1990s, Covington, as counsel for the Tobacco Institute and cigarette manufacturers, served as a funnel for tobacco industry money to various national and state tort "reform" public-relations efforts and organizations. Covington and Big Tobacco sometimes helped to set up those groups. (2)

A February 2005 Progressive Policy Institute (PPI) report describes the health court proposal this way:

   Malpractice claims should no longer be
   heard in civil courts. Instead, they could be
   handled in administrative processes overseen
   by the states. The system would be
   similar to the one that handles workers'
   compensation claims. This will give more
   injured patients access to quicker and less
   expensive justice.... [Health court review
   boards] would investigate claims and determine
   if they are clear, uncontestable
   cases of malpractice. In such cases, they
   would simply order the injured patient's
   health care provider to pay damages according
   to the schedule of benefits.... In
   cases where a review board determines
   that a patient's injury is clearly not malpractice,
   or is too minor to merit an award,
   the board would dismiss the case.... In cases
   where the circumstances of an injury
   are not cut and dry ..., the review board
   would steer the case to the health court for
   a full trial. (3)

This so-called trial would not be before a jury, but before an individual who is appointed by a governor, is not a judge, and may be employed by or otherwise beholden to the health care or insurance industry. Any compensation that is finally allowed must comply with a "schedule of benefits," similar to those used to determine workers' comp.

Workers' comp model

Health courts are largely based on the workers' comp model, so an examination of them should start with a look at how workers have fared under workers' comp. The workers' compensation system does a terrible job of compensating many of those injured on the job; it's astounding that it should be considered any sort of model. Benefits, even if initially adequate, decline over time as insurers or employers inevitably pressure legislators to reduce compensation. Over the years, lawmakers in virtually every state have steadily chipped away at workers' comp benefit levels and narrowed definitions of workplace injuries. As a result, increasing numbers of workers, particularly those with permanently disabling injuries, are struggling to make ends meet.

A 2002 study by the Rand Institute for Civil Justice estimated that partially disabled workers injured in one state-California--generally received less than 60 percent of their pre-injury income over a five-year period and less than 50 percent of pre-injury earnings over a ten-year period. (4) In a June 2002 report, the nonprofit National Academy of Social Insurance found that for every $100 in wages, workers' comp benefits had declined by 39 percent to $1.03 in 2000, the eighth consecutive year that benefits had dropped as a percentage of wages. (5)

Consumer Reports was highly critical of workers' compensation in a 2000 report, finding that these laws "have generated profits for insurers and savings for employers mainly at the expense of injured workers. Those laws clamped down on benefits, raised eligibility requirements, and put medical treatment mainly in the hands of insurance companies, which can delay or deny medical care or income payments." (6)

Because benefits are inadequate, the system fails most completely when injuries are most severe, as in the case of serious brain damage or other catastrophic injury. Yet workers' comp--with all its problems--is still arguably better for workers than health courts would be for injured patients because under workers' comp, there is at least no need to prove fault.

An unfair forum

Under the health court proposal, the burdens of proof in disputed cases would be the same as in medical malpractice cases. For example, proving causation--that a "mistake that should have been prevented" or a "medical error" (7) resulted in an injury, illness, or impairment--would be essentially no different from having to prove negligence. Any act or omission that causes such an injury would be, by definition, outside the standard of care.

The problem is that injured patients would have to meet their burdens of proof in a potentially biased forum. Requiting patients to prove causation and other issues before an administrative tribunal--even one that did not rely on health care and insurance professionals as decision-makers--is very unfair in medical malpractice actions because of the wide disparity in power and resources between the parties. For example, the parents of a child who has suffered catastrophic injuries due to medical negligence may have major medical expenses related to those injuries and are almost always in a substantially weaker financial position than the defendants in the resulting medical negligence case.

Even neutral administrative tribunals do not offer the normal protections the court system provides to correct imbalances between parties, such as the right to know and rebut evidence through discovery and the right to cross-examine witnesses. Rules of evidence and procedure are relaxed or not applied at all.

Claims that health courts would be more efficient at meting out justice are unfounded. When the New England Journal of Medicine compared alternative compensation systems with jury trials in medical malpractice cases in the late 1970s, it found that the protection against bias and influence that a jury provides and the accuracy attained by complete and careful presentations in court would not be offset by any gains in efficiency that an alternative system might provide. (8)

When the American Bar Foundation looked at no-fault proposals in medical malpractice cases in the mid-1980s, it noted, "While claiming that the main advantage of a no-fault mechanism is a streamlined recovery which presumably takes less time, less money, and less hassle to receive the payback, no-fault proponents face the great problem of actually defining what is a compensable event." (9) In medical malpractice cases, a broad definitional category could be unworkable, since it is often impossible to tell whether a patient's injury was physician- or hospital-induced or a natural condition. (10)

Moreover, there is simply no justification for taking such judgments away from judges and juries. The notion that jurors are unable to handle medical malpractice and other complex cases has been roundly rejected. Empirical studies support the view that jurors can understand the facts and issues in complex litigation. In response to claims voiced as far back as the 1940s that juries are not competent to evaluate medical evidence, numerous studies have looked at jury performance in medical malpractice and other complex trials. Their conclusions are clear and consistent: Juries are competent, effective, and fair decision-makers.

One scholar has written,

   Many malpractice cases are not technically
   complicated (e.g., wrong-dosage cases)
   and others turn on crucial issues of credibility
   (e.g., what was said or done). In all
   states, the jury will be assisted by witnesses
   who tell the jury what the customary clinical
   practices are and why they are customary.
   In reasonable-care states, they will also
   hear what respected medical bodies recommend
   in their clinical practice guidelines.
   These recommendations are likely to
   carry great weight unless a convincing reason
   for departure is offered. Thus, the argument
   that juries lack the tools with which
   to decide malpractice cases fairly seems
   misplaced. (11)

He also noted,

   Overall ... the evidence on complex trials is
   reassuring. The most rigorous studies have
   failed to find any evidence that failures of
   comprehension distort actual jury verdicts.
   Group deliberations and the leadership of
   the most competent jurors appear to cure
   many of the problems of understanding experienced
   by individual jurors. In addition,
   judges and attorneys can further improve
   jury comprehension by better presentation
   of the evidence and the law. Finally, difficulties
   with comprehension have not been
   shown to systematically favor one party over
   another. For these reasons, most researchers
   believe that juries are capable of
   handling complex civil cases. (12)

Disrupting the tort system

Taking cases out of the court system will create serious problems. Should health courts become common, medical errors will probably increase as the deterrence and disclosure functions of the civil justice system are disrupted. When disputes are resolved without trial and without a public record, wrong-doers can prolong misconduct and suppress information about dangerous practices for years.

Many academics have written that the influence of jury verdicts in civil cases, of which there are relatively few, is vastly disproportionate to their number. Juries serve a very important social function: Their verdicts provide "signals" or warnings that certain types of practices will not be tolerated. According to the Rand Institute for Civil Justice, "The jury's decision in any particular case indicates the potential costs of engaging in behavior similar to the defendant's." (13)

The New England Journal of Medicine reported in the late 1970s that replacing the tort system in medical malpractice cases "might well abolish the deterrent signal or distort clinical decision-making." (14) Researchers found that tort cases that assess damages against the negligent doctor send 'signals' to other doctors that discourage future carelessness and reduce future damages. At best, administrative systems satisfy isolated individuals. They do not prevent or deter abuses.

Moreover, when a controversy is resolved informally by an administrative tribunal, it has no legally binding effect, so there can be no expectation that announced principles will be followed in the future. Removing claims from the tort system circumvents rules about standards of conduct that have evolved over the years to protect patients who have no way to protect themselves. It disrupts the important functions of the tort system: deterrence of unsafe practices and the disclosure of dangers to the public, and the evolution of written precedents, which develop individual rights and responsibilities of others.

In evaluating all the potential problems of a health court system, the experience of Virginia's Birth-Related Neurological Injury Compensation Program is instructive. Like health courts, the Virginia program was set up as an alternative injury-compensation system--in this case, for catastrophically injured newborns. It is the exclusive remedy for children who are delivered by a participating OB/GYN and hospital. All injury claims go before an administrative panel, established within the workers' comp system. The panel is "aided" by an "expert" panel of three doctors who determine whether the injury is a covered birth-related neurological injury.

This program has been a tremendous failure on every level. (15) According to a series of investigative reports in the Richmond Times Dispatch, the program prevents many catastrophically injured children from receiving adequate benefits:

   Children born in Virginia with catastrophic
   neurological injuries are promised lifetime
   medical care by the birth-injury program.
   But these children and their families
   also have been forced to absorb stunning
   disparities in program benefits because of
   shifting priorities and cost reductions over
   which they had no control or voice....
   "The program can end up providing very
   little," said Christina Rigney, referring to
   the minimal benefits her family received in
   the face of her son's traumatic birth and
   brief life. (16)

Moreover, "Because the cases do not come to trial, there is no examination of the doctor and what occurred at birth, nor is there testimony from nurses or neurologists about a doctor's action." (17) National birth-injury experts have reportedly expressed fear about Virginia becoming a safe harbor for bad doctors due to this law. (18)

Not a single case in the program's 15-year history has produced a disciplinary action against a hospital or doctor, even though those cases "pose a high risk for findings of negligence against doctors, nurses, and hospitals." (19)

One mother of a daughter with cerebral palsy and other severe disabilities testified before the Virginia legislature that the program "has evolved from a model of care for severely disabled children to ... [a] safe haven for physicians and hospitals who, in some cases, are directly responsible for these catastrophic injuries." (20)

As former Judge Harry Edwards of the D.C. Circuit Court of Appeals once noted, "Inexpensive, expeditious, and informal adjudication is not always synonymous with fair and just adjudication." (21) The health court proposal currently being pushed by tort "reformers" shows little concern for what is best for patients, especially the most severely injured patients. Removing claims from the tort system will not only result in severe undercompensation for most patients, it will also ultimately circumvent rules about standards of conduct that have evolved over the years to protect patients who have no way to protect themselves.

Notes

(1.) CTR. FOR JUSTICE & DEMOCRACY & PUBLIC CITIZEN, THE CALA FILES (1999) (on file with author).

(2.) Id.

(3.) NANCY UDELL & DAVID B. KENDALL, PROGRESSIVE POLICY INST., HEALTH COURTS: FAIR AND RELIABLE JUSTICE FOR INJURED PATIENTS 3 (Feb. 17, 2005), available at www.ppionline.org (click on "health care") (last visited Nov. 22, 2005).

(4.) ROBERT T. REVELLI ET AL., RAND INST. FOR CIVIL JUSTICE, TRENDS IN EARNINGS LOSS FROM DISABLING WORKPLACE INJURIES IN CALIFORNIA: THE ROLE OF ECONOMIC CONDITIONS (2002), available at www.rand.org/Abstracts (search for document number MR-1457-ICJ) (last visited Nov. 22, 2005).

(5.) DANIEL MONT ET AL., NAT'L ACAD. OF SOCIAL INS., WORKERS' COMPENSATION: BENEFITS, COVERAGE, AND COSTS, 2000 NEW ESTIMATES (June 2002), available at www.nasi.org/usr_doc/nasi_wkrs_comp_6_26_02.pdf (last visited Nov. 22, 2005).

(6.) Workers' Comp: Falling Down on the Job, CONSUMER REPS., Feb. 2000, at 28.

(7.) UDELL & KENDALL, supra note 3, at 10.

(8.) William B. Schwartz & Neil Komesar, Doctors, Damages, and Deterrence:An Economic View of Medical Malpractice, 298 N. ENG. J. MED. 1282 (1978).

(9.) Taylor, American Bar Foundation, Alternatives to Tort Liability, An Overview, Legal Liability and Quality Assurance in Newborn Screening (1985).

(10.) Id.

(11.) Philip G. Peters Jr., The Role of the Jury in Modern Malpractice Law, 87 IOWA L. REV. 909, 931-32 (2002) (citing various studies from 1942 to 1999), available at http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=310681 (last visited Nov. 23, 2005).

(12.) Id.

(13.) ERIK MOLLER ET AL., RAND INST. FOR CIVIL JUSTICE, PUNITIVE DAMAGES IN FINANCIAL INJURY JURY VERDICTS (1997); see also Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW (1987); Richard L. Abel, The Real Tort Crisis--Too Few Claims, 48 OHIO ST. LJ. 443 (1987).

(14.) Schwartz & Komesar, supra note 8.

(15.) Bill McKelway, Brain-Injury Program's Out-look Dim; Cost Savings for Doctors Meant Less for Children, RICH. TIMES DISPATCH, Nov. 16, 2002, at A1.

(16.) Bill McKelway, A Mystery in Danville: Disproportionate Births of Brain-Damaged Babies, RICH. TIMES DISPATCH, June 1, 2003, at A1.

(17.) Bill McKelway, Brain Injuries Spur No Action; Case Review, Required by Law, Is Not Being Done, Va. Study Found, RICH. TIMES DISPATCH, Jan. 14, 2003, at A6.

(18.) McKelway, supra note 15.

(19.) McKelway, supra note 17.

(20.) Bill McKelway, Panel Approves Bill on Birth Injuries; Would Expand Benefits and Notification Rights, RICH. TIMES DISPATCH, Jan. 29, 2003, at B1.

(21.) Harry Edwards, Hopes and Fears for Alternative Dispute Resolution, 21 WILLAMETTE L. REV. 425 (1985).

JOANNE DOROSHOW is the executive director of the Center for Justice & Democracy in New York City.