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Health Court Reform Proposal Gains Key Support

Common Good distributed the following press release earlier today:

New York, NY – May 1, 2013 – Momentum for the creation of specialized health courts continues to build, as the nation faces rising health care costs without addressing the avoidable waste caused by unreliable medical justice, which fuels billions of dollars in unnecessary “defensive medicine” annually. Two new proposals from widely respected groups add to the growing calls for health courts. These proposals come in the wake of the first U.S. presidential race in which both major-party candidates endorsed health courts.

  • The Brookings Institution issued on April 29th a report titled “Bending the Curve: Person-Centered Health Care Reform: A Framework for Improving Care and Slowing Health Care Cost Growth.” The authors of the report, which was funded by the Robert Wood Johnson Foundation and the Irene Diamond Fund, include some of the most distinguished names in health care and budget management from both major political parties; among them are two former Secretaries of Health and Human Services, two former Directors of the Office of Management and Budget, a former Senate Majority Leader and a former Chairman of the Council of Economic Advisors.

    In a section titled “Encourage States to Develop More Efficient Medical Liability Systems”, the report states: “Since most tort law and related regulations are under state jurisdiction, reforms to foster a more effective medical liability system will likely require state action. To encourage state liability reform, we recommend that the federal government provide states with technical assistance and grant funding to test innovative reform models, and to include such liability reforms in state-based reform initiatives. These state-level reforms should focus on well-supported models such as:

    • ‘Safe harbor’ or ‘rebuttable presumption’ laws that establish legal protections for providers who achieve high quality and safety performance using valid measures.
    • Reforms that modify the existing judicial process for resolving tort claims with lower-cost and more predictable alternatives. These include a ‘patient compensation system’ that enables most claims to be settled through a standardized administrative process with predictable awards based on the adverse outcome involved, and Health Courts in which independent experts with clinical expertise would adjudicate liability claims.”
  • A new deficit-reduction plan was proposed on April 19th by Erskine Bowles and Alan Simpson, who chaired the National Commission on Fiscal Responsibility and Reform and now chair the Moment of Truth Project. The plan – “A Bipartisan Path Forward to Securing America’s Future” – states, in a section titled “Enact Medicare Malpractice Reform ($20 billion through 2023)”, “The current medical malpractice system adds substantially to the cost of health care, including by increasing the cost of defensive medicine...,” and recommends implementing eight reforms, including “applying a health court model to malpractice claims in the Federal Claims Court.”

These calls for health courts are the latest in a series of bipartisan calls for their implementation. In last year’s presidential race, Republican candidate Mitt Romney advocated the creation of specialized health courts in an op-ed in USA Today. President Obama had previously endorsed the creation of special health courts in a letter to Congressional leaders released by The White House on March 2, 2010.

The National Commission on Fiscal Responsibility and Reform endorsed the creation of specialized health courts, and three other bipartisan commissions have endorsed health courts: the Committee for a Responsible Federal Budget (at the New America Foundation); the Debt Reduction Task Force of the Bipartisan Policy Center; and Esquire magazine’s Commission to Balance the Federal Budget.

The concept of health courts has been championed by Common Good – the nonpartisan government reform coalition – working in conjunction with experts at the Harvard School of Public Health. Under Common Good’s model, health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in areas of complexity where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers’ comp, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health care justice – and for health courts in particular. A nationwide poll conducted in 2012 by Clarus Research Group revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. The health court concept has also been endorsed by virtually every legitimate health care constituency, including medical societies, patient safety organizations and consumer groups like AARP.

“Except for opposition from the trial lawyers who benefit from the current system of unreliable justice, health courts would be implemented and the public would avoid spending billions of dollars unnecessarily,” said Philip K. Howard, Founder and Chair of Common Good. “The only question now is: How much longer does the public want to pay for that unnecessary waste?”