Results matching “"health courts"”

Released today, "The Moment of Truth: Report of the National Commission on Fiscal Responsibility and Reform," includes specific recommendations for medical liability reform. A one- to three-year statutes of limitation and replacing joint-and-several liability with a "fair share" rule? That's substantive.

The recommendations come under Section III, Health Care Savings:

3.12 Medical malpractice reform.
(Saves $2 billion in 2015, $17 billion through 2020)
Most experts agree that the current tort system in the United States leads to an increase in health care costs. This is true both because of direct costs - higher malpractice insurance premiums - and indirect costs in the form of over-utilization of diagnostic and related services (sometimes referred to as "defensive medicine"). The Commission recommends an aggressive set of reforms to the tort system.

Among the policies pursued, the following should be included: 1) Modifying the "collateral source" rule to allow outside sources of income collected as a result of an injury (for example workers' compensation benefits or insurance benefits) to be considered in deciding awards; 2) Imposing a statute of limitations - perhaps one to three years - on medical malpractice lawsuits; 3) Replacing joint-and-several liability with a fair-share rule, under which a defendant in a lawsuit would be liable only for the percentage of the final award that was equal to his or her share of responsibility for the injury; 4) Creating specialized "health courts" for medical malpractice lawsuits; and 5) Allowing "safe haven" rules for providers who follow best practices of care.

Many members of the Commission also believe that we should impose statutory caps on punitive and non-economic damages, and we recommend that Congress consider this approach and evaluate its impact.

UPDATE (1:40 p.m.): A quick response from the American Association for Justice condemns the radical proposals and dangerous ideas. Or is it dangerous proposals and radical ideas?

Last Friday, the Department Health and Human Services announced $25 million in grant awards under its The HHS Patient Safety and Medical Liability Initiative, the Administration's attempt to neutralize the tort reform element in the campaign debates over health care. Whether it was the timing or the underwhelming nature of the announcement -- grants! to universities! -- the major news media barely noticed. California Health Line has a good summary of the thin coverage, some written in anticipation of the reports. (Earlier POL post.)

In a post at the White House blog, OMB health care advisor Dr. Ezekiel Emanuel took note of the support of the American Medical Association:

The grants were praised by J. James Rohack, M.D., the President of the American Medical Association who said "The AMA is pleased that federal medical liability reform demonstration projects are quickly moving forward, with $25 million in grants to state programs announced today."

Such effusive praise. The entire statement from Dr. Rohack is at the AMA website, "AMA-Supported Federal Medical Liability Grants Move Forward," and its most interesting point is the lack of any reference to damage caps, long an AMA priority.

Medical liability reform, the White House version - PointOfLaw Forum

Dr. Ezekiel Emanuel, a health care advisor in the Office of Management and Budget, used the White House blog to provide the Administration's rationale for the $25 million in grants awarded for patient safety and medical liability projects. (Earlier POL post.) Emanuel writes, "An Important Step on Medical Malpractice Reform":

The 20 grants awarded today by the Agency for Healthcare Research and Quality (AHRQ) are an important step in the right direction. They will fund programs that aim to reduce avoidable injuries. For instance, one program in Massachusetts aims to reduce errors in primary care physician offices, particularly concerning medications and referrals. Another in Minnesota targets patient safety around childbirth by instituting best practices at 16 hospitals statewide and determining if there is a correlation between fewer complications in childbirth and malpractice suits targeted at obstetricians. A third, in Oregon, will develop and work to implement a "safe harbor" system in which physicians who prove they adhered to evidence based guidelines are protected from frivolous lawsuits.

Many of these grants will rigorously test so-called "disclosure and early offer" interventions, which was the keystone of a 2005 medical malpractice bill proposed by then-Senators Obama and Clinton. These interventions inform injured patients and families promptly and make efforts to provide prompt and fair compensation.

Philip K. Howard, head of the legal reform group Common Good, issued a statement following Secretary Kathleen Sebelius announcement of the grant awards. Howard said:

While some of these projects might improve the process when patients are injured by medical error, none of them protects doctors from lawsuits where there were no errors. This unreliability drives defensive medicine. The Department of Health and Human Services is avoiding the reality that a new reliable system of medical justice is needed to end defensive medicine, a practice which contributes to the unsustainable growth in health care costs. The trial lawyers, a major contributor to Congressional campaign coffers, are the only beneficiary of the current system, and Washington appears unwilling to take them on, especially in an election year. We'll see in the fall elections if voters are still happy to have special interests put ahead of the public interest.

We tend to think the primary reason for the grants is a political one. During the general election campaign, if a challenger charges, "Congress and the Administration just ignored tort reform in the health care debate," the incumbent can say, "That's not true. The Administration right now is examining what works and what doesn't..."

Background ...

UPDATE (12:55 p.m.): We should note that Common Good advocates creation of "health courts" to handle medical liability cases. Other groups like the American Tort Reform Association hold up caps on non-economic damages as more a direct reform, already proven successful in Texas and other states.

Obama open to health court idea - PointOfLaw Forum

At least if money represents openness. The Associated Press:

Obama's letter said he was open to appropriating an extra $50 million for pilot programs that experiment with specialized health courts rather than jury trials. A judge steeped in medical matters would hear evidence and render verdicts for patients alleging injuries from wrongful acts.

A plaintiff lawyers' group, the Center for Justice & Democracy, said it strongly opposes such health courts, calling them "anti-patient."

Baltimore Sun on med-mal reform - PointOfLaw Forum

Healthcare and Tort Reform - PointOfLaw Forum

I have an opinion piece in the December issue of Metropolitan Corporate Counsel that addresses the litigation reform proposal, section 2351, in the House health-care reform bill. In substance, this piece is a more detailed version of my earlier New York Post op-ed on the subject, already linked by Walter here.

In this newer column, I note that "president's call for demonstration projects that try new ideas is welcome"; even though damage caps and other "traditional" tort reforms have been proven effective at lowering costs, other yet-untried reforms might do even more on that front -- and could also do more to "reduc[e] the time it takes to receive compensation from injury, weed[] out bad suits, and reach[] determinations on questions of negligence and causation more based on science than jury sympathy." E.g.,

The Manhattan Institute has called for changing the way the legal system handles settlements and attorney fees - through early-offer systems and offer-of-judgment reforms - that would reduce the incidence of weak suits (and improve compensation for high-quality, low-value claims). Public health researchers at Harvard have echoed Covington & Burling's Philip Howard in arguing for specialized health courts that take medical malpractice out of the traditional civil courts altogether.

Unfortunately, as we have documented on this site, the Pelosi bill "is more geared toward protecting the trial bar's interests than in giving real alternatives a try":

The bill authorizes funding for "early offer" reforms, but its restrictions on damage- and fee-limitations would preclude any workable early-offer ideas, including the Manhattan Institute's suggested reforms and alternative ideas developed by University of Virginia torts professor Jeffrey O'Connell. The bill has no provision to encourage health courts at all.

Instead, what the bill offers to fund are merely "certificate of merit" proposals, Section 2351(a)(4)(A). Although such proposals can help to weed out bad lawsuits - particularly if legislation calls for panels with robust authority to screen claims - in practice, certificate-of-merit reforms often amount to little more than requiring that a plaintiffs' lawyer obtain an affidavit from a doctor before proceeding to discovery. Since any decent med-mal claim requires expert witness testimony anyway, such reforms do very little indeed, which is why even plaintiffs' lawyer John Edwards embraced them as a presidential candidate.

Around the web, November 23 - PointOfLaw Forum

  • Tide turning against drug-pricing suits? Glaxo SmithKline beats back Kentucky case [Longstreth, AmLaw Daily]
  • Court in Australia deems litigation funding pact improper as "unregistered managed investment scheme" [New Lawyer]
  • Should docs be careful what they ask for? Michelle Mello of Harvard, a prominent advocate of health courts, hopes they'll significantly expand compensation [Gerencher, MarketWatch]
  • Doubts about the latest phthalates scare, and a Daubert angle [Trevor Butterworth, Forbes]
  • Claim: pay-to-play isn't such a big problem with public pension plaintiffs after all [Securities Litigation Watch, more]
  • Chevron, trial lawyer adversaries locked in lobbying combat over Ecuador suit [Politico via Law & More]

The second quarter 2009 lobbying disclosure reports have been filed with the U.S. House and Senate, and not surprisingly, the American Association for Justice has expanded its efforts to keep any liability limits from being included in congressional health care legislation. (AAJ disclosure report here in .pdf.) Total lobbying expenditures for the quarter: $1.12 million.

Under the category of "Torts" -- not "Health Care" -- we find this growing list of issues AAJ lobbied on. The first two entries on page 16 were also featured in the first quarter 2009 AAJ disclosure, but the rest are new additions. Phew...

S 391 (Healthy Americans Act); specific interest in provisions in Title VI and VII relating to payments to States for implementing measures related to liability for medical malpractice.

Lobbying with regard to medical malpractice liability as it relates to any health care reform proposal; also lobbying in response to "Call to Action: Health Reform 2009" (a White Paper issued by Senator Baucus); specific interest in proposed health courts and other malpractice compensation models.

Affordable Health Choices Act (HELP Committee health care reform bill; unnumbered as of 6/30/09); specific interest in amendments relating to liability for medical negligence:

Coburn amendment #88, not offered as of 6/30/09; to establish a grant program for states to develop, implement, and evaluate three alternative models to the current tort litigation system, including an expert review panel, an administrative health care tribunal, and a combination of these systems.

Philip Howard in WSJ on medical liability politics - PointOfLaw Forum

Sen. Sheldon Whitehouse (D-R.I.) and others on a Judiciary panel dismiss out of hand the case for nonjury health courts, and Philip Howard (The Death of Common Sense, Common Good) wonders whether the Senate majority is going to give its trial lawyer constituency a veto over health reform:

Special courts without juries are common in America and include courts for bankruptcy, tax disputes, workers compensation and more. America has a long history of using expert courts when there is a need for expertise and consistency. It's hard to imagine any area that needs consistent justice more than health care.

Administered compensation and the Feres doctrine - PointOfLaw Forum

"An effort to overturn a 59-year-old Supreme Court decision barring service members from suing the government for negligence inched forward Tuesday when a House subcommittee approved the Carmelo Rodriguez Military Medical Accountability Act." [Navy Times] The Norfolk Virginian-Pilot is also lending a reportorial hand to the plaintiffs' cause. The legislation would curtail the Feres doctrine, which restrains uniformed personnel from filing negligence lawsuits against the armed services. In effect, the doctrine requires that injured personnel be content to accept whatever benefits package the armed services (and ultimately Congress) choose to provide for death, disability or other losses (earlier here and here).

It seems to me that the controversy over Feres repeal would make a good place to draw a line in the sand for those who favor administered-compensation alternatives to medical liability litigation -- whether that happens to mean the Harvard-style school of no-fault proposals with relatively generous definitions of eligibility, or the Common Good emphasis on health courts with credible expertise on causation, or the various other possibilities modeled on vaccine or infant-brain-damage no-fault programs, workers' comp, New Zealand social insurance, or European practices. If administered compensation without the high overhead and acrimony of litigation can't work in the context of military medicine -- in which the parties already have intense and ongoing legal relations with each other, in which complications arising from multiple sources of health care are at a minimum, and in which the prospective defendant is already providing a comprehensive, lifelong package of benefits to the prospective plaintiff -- then it probably can't be made to work anywhere.

Of course the lobbying push in Congress never seems to take the form of "let's liberalize benefits for service families who find themselves in this situation, but in ways that don't require them to go through lawsuits". It's almost as if expanding litigation is a goal in itself.

Around the web, April 17 - PointOfLaw Forum

  • Hearing discloses that Coughlin Stoia provides suit-sniffing "portfolio monitoring services" to potential big lead plaintiffs. "Shocking conflict of interest", as Judge Rakoff contends? Routine, standard practice for firms in securities class action biz? Both? [Kevin LaCroix, D&O Diary; David Bario, AmLaw Daily]
  • California legislature nixes interlocutory appeal of class certification [Calif. Civil Justice]
  • One trial lawyer's riposte to Philip Howard's health courts proposal [Kennerly]
  • Leverage for complainants dept.: EPA will now require grant recipients to disclose pending civil rights lawsuits [Chris Horner, American Spectator]
  • Officials in Spain signal displeasure at prospective prosecution of Bush lawyers [WSJ law blog, NRO "Corner"]
  • Lawmakers in Oregon, Nevada move to raise some liability-suit limits [TortsProf and again]

Ezekiel Emanuel, a "key Obama health advisor" who also happens to be an oncologist and the brother of White House chief of staff Rahm Emanuel, raised the prospect of a Democrat-led federal med-mal reform effort during an AMA meeting. See Yahoo coverage here. Health Courts are apparently a possibility being seriously considered.

Health courts and administrative med-mal compensation - PointOfLaw Forum

Common Good's Monday Washington conference is now online in webcast form.

Upcoming Common Good conference in Washington Nov. 5, at the offices of the Human Rights Campaign. Description (N.B.: updated from earlier version):

May 24 updates - PointOfLaw Forum

More stirrings on health courts - PointOfLaw Forum

Philip Howard's organization Common Good is reporting (and is itself at the center of) a flurry of activity on the concept, including a grant from the Robert Wood Johnson Foundation, and legislative stirrings in Maryland, Virginia and elsewhere. More details at the Common Good site, including FAQ and brochure.

Health courts, administered compensation and safety - PointOfLaw Forum

Common Good and the Harvard School of Public Health are having a half-day conference on the subject this coming Wednesday, Nov. 8 in Washington, D.C. Details here, including a link to a live webcast.

Yesterday's House health hearing - PointOfLaw Forum

Covered by UPI here. Common Good has this information about a Senate hearing last month. And Jonathan Wilson has some skeptical thoughts about the health courts idea at his site.

Health courts hearing today on Hill - PointOfLaw Forum

From Common Good:

On Thursday, July 13th, the Health Subcommittee of the House Committee on Energy and Commerce will hold a hearing entitled �Innovative Solutions to Medical Liability.� At the hearing, Common Good General Counsel Paul Barringer will testify in support of health courts as a viable alternative to the current medical justice system. He will speak to the failings of the current system and how health courts can ameliorate these problems. Other witnesses will include Professor Michelle Mello, Harvard School of Public Health, and Professor Jeffrey O'Connell, University of Virginia School of Law.

Full details, including links, are at the Common Good site.

ABA vs. health courts - PointOfLaw Forum

Philip Howard detects a pocketbook influence in the bar group's opposition.

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