Health courts are receiving support as a means to enhance patient safety, the notion being that health courts will function like other specialized courts (i.e., tax, bankruptcy, admiralty, etc.), with an eye to cultivate “a culture of transparency regarding medical errors and the creation of mechanisms to gather and analyze data on medical injuries.”
Common Good, the bipartisan legal reform coalition, is currently leading the effort to develop models for special health courts in partnership with The Harvard School of Public Health, with funding from The Robert Wood Johnson Foundation.
Authors laying the foundation for health courts in “”Health Courts” and Accountability for Patient Safety,” The Milbank Quarterly, September 18, 2006, are my colleagues Michelle M. Mello, Associate Professor of Health Policy and Law, Harvard School of Public Health; David M. Studdert, Associate Professor of Law and Public Health, Harvard School of Public Health; Troyen A. Brennan, Professor of Health Policy and Management, Harvard School of Public Health (when this research was undertaken); now Chief Medical Officer for Aetna; and one other author, Allen B. Kachalia, Associate Medical Director, Brigham and Women’s Physician Organization, Brigham and Women’s Hospital.
According to the summary by Common Good:
“Special health courts would be devoted exclusively to addressing health care issues, much as existing specialized courts focus on other areas of law: admiralty courts, tax courts, drug courts, bankruptcy courts, and administrative tribunals in areas ranging from workers’ compensation to vaccine liability. The hallmark of special health courts would be full-time judges, trained in health care issues. These judges would define and interpret standards of care in malpractice cases, relying on neutral experts paid by the court and setting precedent from one case to another. Special health courts would ensure that patients injured by mistakes would be reliably compensated, without having to pay one third or more to lawyers.”
The article lays the foundation for changing from the current tort system of compensation to a form of administrative regulation:
“A health court is a system of administrative compensation for medical injuries. It has five core features. First, injury compensation decisions are made outside the regular court system by specially trained judges. Second, compensation decisions are based on a standard of care that is broader than the negligence standard (but does not approach strict liability). “Avoidability” or “preventability” of the injury is the touchstone. To obtain compensation, claimants must show that the injury would not have occurred if best practices had been followed or an optimal system of care had been in place, but they need not show that care fell below the standard expected of a reasonable practitioner. Third, compensation criteria are based on evidence; that is, they are grounded in experts’ interpretations of the leading scientific literature. To the maximum extent feasible, compensation decisions are guided by ex ante determinations about the preventability of common medical adverse events. Fourth, this knowledge, coupled with precedent, is converted to decision aids that allow fast-track compensation decisions for certain types of injury. Fifth and finally, ex ante guidelines also inform decisions about how much for economic and noneconomic damages should be paid.”
Full text of “Health Courts” and Accountability for Patient Safety.
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