American Journal of Law & Medicine

The anti-patient psychology of health courts: prescriptions from a lawyer-physician.

I. INTRODUCTION

Critics of the current medical malpractice tort system claim that adjudication of malpractice claims before generalist judges and lay juries contributes to rising costs of medical malpractice insurance premiums and medical care. They claim that properly deciding issues in this realm requires specialized knowledge of medicine and medical technology that juries, and even judges of general jurisdiction, do not possess. One lobbying group alleges there is a continuing medical malpractice litigation crisis in the United States, evidenced by increasing medical costs, deaths from needless medical errors, departure of physicians from the practice of medicine due to increasing medical malpractice insurance premiums, and random medical justice in medical malpractice cases. (1) Whether there is a direct, causal correlation between the increasing cost of medical malpractice insurance premiums and medical malpractice litigation is debatable. Nonetheless, specialty "health courts" have been proposed as a solution to the problem of high cost medical malpractice insurance and medical care, and as a vehicle for fairer adjudication of medical malpractice cases.

Health court proponents, including non-profit legal reform coalitions such as Common Good (2) and private professional advocacy organizations such as the American Medical Association (AMA) (3), support creation of specialized courts to adjudicate medical malpractice lawsuits. (4) Proponents base their support of health courts on purported benefits of health courts, including 1) decreased cost of litigation because of removal of juries and the cost of educating juries--health courts will be presided over by judges specially trained and experienced in handling medical malpractice issues; 2) decreased cost of litigation because of elimination of the battle of opposing parties' expert witnesses, and replacement of the witnesses with court appointed neutral experts; 3) lowered liability threshold--from a negligence standard to a lower "avoidability" standard, thereby permitting more injured patients to file claims for medical malpractice--although this sounds like a benefit to patients, as shown below, the net effect of this standard and the freedom of health court adjudicators to decide whether claims are meritorious will actually discourage injured patients from filing claims (5); 4) more consistent and "fairer" damages awards, because of use of damages schedules for compensating injured claimants; and 5) greater administrative efficiency and speed in handling medical malpractice cases. (6) The AMA and Common Good believe that with the success of health courts, medical malpractice premium costs will decrease significantly and more reasoned adjudications of medical malpractice claims will occur. (7) They and other proponents of health courts have championed the benefits of efficiency and faster resolution of medical malpractice cases in these courts. (8)

This article argues that health courts will bring injustice to adjudication of medical malpractice claims because of the inherent pro-medical industry bias built into their design and inevitable in their operation. This bias is a natural byproduct of the psychology of interactions between health court adjudicators, medical industry advisers and educators, and advocacy groups with which the adjudicators must have frequent and continued interaction for the courts to function according to proponents' designs. Health courts are untenable, however, unless they are implemented solely for the benefit of medical malpractice defendants. This article argues that the anti-patient psychosocial training and development of physicians, combined with the epistemic authority (9) of the medical industry and medical experts within health court designs, will result in a pro-defendant bias in health court verdicts. Epistemic authority is the authority of knowledge and thought. (10) Health court judges must obtain knowledge and training regarding medical standards of care, current technology, and capabilities from some source and the principal source is likely to be the medical industry. Industry educators, researchers, and practitioners have the greatest practical fund of knowledge regarding this information. When it comes to medical malpractice issues, however, as group these persons have a vested interest in protecting themselves and their colleagues from findings of liability with respect to patient injuries. Industry advocacy groups, such as the AMA, traditionally expend much of their time and money lobbying legislatures to protect and advance the interests of industry members such as physicians, as in the case of health courts. These groups, and sympathetic legislators, will see to it that groups such as the AMA have significant influence in training and continuing education of health court judges and significant control over the selection of health court medical experts. The lists from which judges may select medical experts will be populated by pro-defendant experts. The result of these processes will be judgments biased in favor of defendants.

Section II presents the context in which health court proposals arise, provides a brief history of schemes to decrease physician exposure to liability for malpractice, and summarizes health court legislation proposed in recent years. Section III provides a summary of select existing responses in opposition to health courts. Section IV explores the anti-patient psychosocial development of physicians in training and practice and argues that the resulting antagonism of physician to patient will manifest in pro-industry bias because of the positions of epistemic authority in which physicians are placed in health court schemes, positions of training, educating, advising, and otherwise influencing the decisions of health court judges with respect to issues of standards of care and medical negligence. The article concludes that to preserve any fairness to plaintiffs in adjudication of medical malpractice claims, the current tort system with lay jurors evaluating competing party expert testimony as part of their decision-making in these cases must remain in place.

II. HEALTH COURT PROPOSALS--CONTEXT, SCHEMES, AND PROPOSED LEGISLATION

A. CONTEXT OF HEALTH COURT PROPOSALS, AND MALPRACTICE DISPUTE SCHEMES

For years, there have been various campaigns by healthcare organizations and their sympathizers to decrease exposure to liability for patient harm caused by medical negligence. Health court proposals are part of an evolution of schemes to reduce the role of courts of general jurisdiction in resolving medical malpractice disputes, the current system being viewed as costly and dangerous for medical industry members. For example, in 1973 a no-fault "medical adversity insurance" scheme was proposed which would avoid assigning blame in malpractice eases and provide a list of pre-established compensable malpractice events. (11) In 1989, the AMA proposed an alternative, fault-based administrative adjudicatory scheme, with the caveat that malpractice claims would be tried by "experienced and qualified hearing examiners." (12) There have been a number of reforms to decrease or cap the damages successful claimants may receive in medical malpractice litigation, particularly for punitive damages. The majority of state legislatures have enacted some form of limitation such as damages caps, prohibition of joint and several liability, shorter statutes of limitation, pretrial screening panels, permitting losing defendants to make periodic payments for future loses, and limitations on plaintiffs' attorney contingent fee agreements. (13)

Standard methods to attempt to curtail insurance and medical care costs include tort reform legislation of various types. Tort reform efforts in recent decades have had questionable success in providing these protections, even with some measurable success in decreasing the average size of damages awards for prevailing medical malpractice claimants. (14) As of January 2005, thirty-six states have enacted and are enforcing legislative limits on punitive/non-economic damages in medical malpractice cases. (15) The remaining fourteen states' legislatures have either not enacted such tort reform legislation or have enacted controlling statutes that have been struck down on constitutional grounds. (16) Finally, there have been actions taken at the federal level to limit damages or fees in certain types of medical malpractice cases. (17)

Although its origins are unclear, the health court concept came to prominence in 2002 when Philip K. Howard, founder and chairman of Common Good, took up its mantel. (18) The concept was discussed in 2003 at an American Enterprise Institute-Brookings Institution Joint Center for Regulatory Studies and Common Good forum, (19) and detailed and lobbied for by Howard in subsequent publications. (20) Health court proposals have since been endorsed by other organizations including the Democratic Leadership Council, physicians and their organizations, and insurance companies. (21) Health court advocates contend that judges and juries in courts of general jurisdiction lack the ability to understand medical issues and often make medical malpractice adjudicatory decisions based upon inappropriately considered factors. (22) The advocates assert that health courts will provide trained judges with specialized knowledge and guidance from select medical experts who will better understand detailed medical facts, leading to fairer outcomes. (23)

Lay juries in medical malpractice cases have been blamed for causing a medical malpractice crisis, including escalating medical malpractice insurance premiums and the ever-increasing high cost of medical care. (24) Proponents believe that health courts are a solution to these woes. (25)

B. PROPOSED HEALTH COURT LEGISLATION

Legislation to create specialized health courts, with specially trained adjudicators, has been proposed in at least seven states. (26) The proposed state health court statutes each contain provisions in one or more of the following three categories:

Creation of separate courts, or separate civil divisions within existing trial courts, to handle all medical malpractice claims. Medical expert judges will handle cases with the aid of court appointed neutral expert witnesses who will provide testimony and opinion as to medical standards of care and negligence. These courts will do away with juries and eliminate the presentation of expert medical opinion by party-hired experts (the "battle of the experts").

Creation of a medical malpractice claim review board, a quasi-judicial entity, to which medical malpractice claims will be referred, and that will decide medical malpractice liability and determine compensation for injury.

Creation of administrative compensation systems administered by hospitals or on behalf of hospitals.

The first of these three types of proposals for specialized courts to handle medical malpractice litigation is the most popular with state and federal legislators, physicians, and physician groups such as the AMA. (27) A common theme running through the various state legislative proposals is that creation and operation of specialized health courts are seen as mechanisms through which states can promote, restore, and assure fair, equitable, just, and reliable adjudication of medical malpractice claims. (28)

At least two federal statutes have been proposed for this same purpose. H.R. 1546 was introduced by Representative Mac Thornberry to test model health care tribunals at the state level. (29) The Fair And Reliable Medical Justice Act, S. 1337 was introduced by Senators Max Baucus and Michael Enzi to finance state level pilot programs under several alternative models to current medical malpractice litigation, including health courts, early offer programs, and scheduled compensation. (30) This legislation would allow for creation of state health courts, set fees for avoidable injuries, and sliding scale fees for pain and suffering--depending on the injuries. (31)

The Fair and Reliable Medical Justice Act, would provide states with federal money to create health courts. (32) The proposed act provides four models upon which states may base their health courts' design in order to receive the federal funds. (33) The third model included in the bill, the Special Health Care Court Model, provides for establishment of special courts for adjudication of medical malpractice cases, staffed by specialty judges who are or will be experts in health care matters. (34) The model provides that health court judges will make binding determinations or decisions as to standards of care, injury, causation, and compensation. (35) A necessary component of this model, however, is that the health court judges will commission medical expert witnesses upon whom the judges will rely in making their malpractice rulings. (36) To call these experts witnesses is overstatement: the "witnesses" are to act as independent, allegedly "neutral," advisers to the judges, providing their "expert opinions" without challenge. (37) They are not to act as witnesses to be questioned and challenged by counsel to the parties involved in a particular medical malpractice lawsuit. (38)

The model requires States to ensure that judges meeting "applicable state standards for judges" preside over health courts. (39) The judges would have health care expertise. (40) Proponents of this health court model propose that insurers, hospitals, and individual medical experts will act as advisors to the judges, providing their viewpoints to influence the judges in making their case decisions. (41) The health court judge is expected to make decisions relying heavily upon input from the so-called "independent" medical experts. (42) A party would be able to appeal an adverse decision outside the health court system, but does not state whether review by higher courts would follow an arbitrary and capricious standard. (43) Under this review standard, which is highly deferential to the fact-finding court, plaintiffs would have little, if any, real chance of reversing an adverse decision made by health court judges without aid of an independent jury and with the advice of an industry friendly medical expert. At least one critic challenges this health court model on constitutional due process and equal protection grounds, as well as on the basis of a right to jury trial or open access to courts ground. (44)

A third federal measure, which passed in the House but died in the Senate, was the Help Efficient, Accessible, Low-Cost, Timely Healthcare Act (HEALTH Act). (45) This bill, if enacted, would have placed caps on punitive/non-economic damages on a national basis, limited joint and several liability, abolished the collateral source rule, (46) limited contingency fees for plaintiffs' attorneys, created a federal statute of limitations for medical malpractice claims, allowed for periodic payment of damages awarded, and preempted state laws regarding certain elements of medical malpractice claims. (47)

To date, none of the proposed legislation explicitly creating health courts --state or federal--has been enacted. Despite the repeated failure of state and federal legislatures to enact health court legislation, some legislators and key proponents such as the AMA (48) and Common Good (49) continue to advocate creation of these specialized courts. These advocacy groups' histories and political activities provide insight to their true positions and aims with respect to health court legislation. Review of the AMA and Common Good health court proposals reveals that they anticipate health court judges being trained and advised by medical industry members who are also stakeholders in the medical malpractice litigation debate. (50)

The AMA currently represents approximately 29% of physicians in the United States and lobbies for legal and political protections and privileges for physicians in general. (51) Its stated mission is "to promote the art and science of medicine and the betterment of public health." (52) Its stated vision is "to be an essential part of the professional life of every physician" and it proposes "to play an active role in shaping the future of medicine." (53) Founded in 1847, by Nathan Smith Davis, MD to "elevate the standard of medical education in the United States," the AMA claims to serve as advocate for physicians, medical profession, and patients. (54) Yet, one central focus of the AMA for many years has been the limitation of damages awards available to injured patients in medical malpractice litigation. (55)

Common Good is a legal reform coalition founded in 2002 by its chairman, attorney Philip K. Howard. (56) It engages with leaders in health care, education, law, business, and public policy to develop what it claims are "practical solutions to restore reliability to our legal system and minimize the impact of legal fear in American life." (57) One of Common Good's major initiatives is health care reform. …

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