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    Thursday, June 25, 2009


    “Never events are now the going payment standard of care as far as hospital re-imbursement. But that means to many a never event will probably also be viewed as representing “below standard medical care.” Thus "the mere designation of never events will likely result in both more numerous and more valuable plaintiffs’ verdicts nationwide,” says Charles Brown.

    In an op-ed in the New York Times Philip K. Howard, chairman of Common Good, a legal reform coalition, writes that currently, "fear of possible claims leads medical professionals to squander billions in unnecessary tests and procedures." This practice, known as "defensive medicine," is now "so prevalent that it has become part of standard protocol," Howard notes.

    And, "under instructions from lawyers," physicians "don't apologize or offer explanations when things go wrong." As a result, "patients, sensing distrust, demand second opinions." "it would be relatively easy to create a new [health] system of reliable justice, one that could support broader reforms to contain costs." But, with "special health courts aimed...delivering fair and reliable decisions," patients and physicians would have "expedited proceedings with knowledgeable staff."

    He also points out that "one benefit" of a "quicker, streamlined system would" be "drastically lower legal costs." Howard concludes that "restoring trust in law," an "essential reform, can be accomplished with the creation of reliable courts." Restoring a foundation of trust requires a new system of medical justice, says Howard. Medical cases are now decided jury by jury, without consistent application of medical standards. According to a 2006 study in the New England Journal of Medicine, around 25 percent of cases where there was no identifiable error resulted in malpractice payments. Nor is the system effective for injured patients — according to the same study, 54 cents of every dollar paid in malpractice cases goes to administrative expenses like lawyers, experts and courts.

    America needs special health courts aimed not at stopping lawsuits but at delivering fair and reliable decisions. A special court would provide expedited proceedings with knowledgeable staff that would work to settle claims quickly. Trials would be conducted before a judge who is advised by a neutral expert, with written rulings on standards of care.

    All information about each incident, including details learned in settlements, would be compiled and disseminated so that doctors and hospitals could learn from their errors.

    Proponents of special health courts have estimated that the total cost of such a new liability system would be about the same as the existing system — less than 2 percent of America’s total health care costs. One benefit would be that the quicker, streamlined system would compensate far more people, with drastically lower legal costs. Most important, it would restore faith in the reliability of medical justice. This country has a long tradition of courts and tribunals to deal with issues like bankruptcy that require special expertise. Nowhere is that expertise, along with the stability and trust it would bring, more needed than in health care.

    Several prominent hospitals, including New York Presbyterian, have said they are interested in being part of a health court pilot project. Some large consumer and patient safety groups support the idea. The fastest way to do this would be for Congress to authorize and finance pilot courts around the country. These ideas already have some bipartisan support: Bills for alternative medical justice systems have been introduced in Congress.

    Cutting back on the notorious inefficiency of American health care is essential to achieve universal care, as well as make the American economy more competitive.
    Part of the solution — overhauling the reimbursement model so that doctors get paid only for what is needed — is unavoidably complex.
    But restoring trust in law, the other essential reform, can be accomplished with the creation of reliable courts.

    * Tune in tomorrow for Recommendations on Managing Infection Passed from Pets to Humans via Bite Injuries

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