The Case For And Against

December 20, 2007
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Rep. Mark Meadows, D-East Lansing, has floated a proposal that calls for the transfer of medical malpractice cases from civil juries to administrative health courts as an alternative to medical tort litigation. The proposal would also provide for the training of circuit court judges on the law and science of medicine. Meadows said he expects to introduce the proposal in bill form in the House sometime next month.

Under the amendment, the state Court Administrative Office would select four counties, and the Circuit Court of each of those counties would be allowed to establish a health court with exclusive jurisdiction over all medical malpractice actions filed in that district. A health court is a jury-less court overseen by a specially trained judge who is assisted by an independent panel of “experts” in settling disputes between patients and providers.

Meadows has been a malpractice attorney for several years. He said he believes the legal process can work better for plaintiffs and defendants with a more “educated venue” and wants to start a dialogue about it.

“I don’t want to rush the process. I want us to talk it out,” Meadows said. “If there is another model that works better, we may move to that other model. I think Michigan is very unique, and we need to shape this to fit Michigan’s needs. It’s a debate that’s happening in a lot of states, and I want this state to be competitive.”

Proponents say health courts will reduce the amount of time needed to resolve a malpractice claim and lower the costs involved. Opponents dislike the concept of denying injured patients the right to a trial by jury.

In Michigan, supporters of the health court concept include the Michigan Chamber of Commerce, Michigan Health & Hospital Association, Michigan Osteopathic Association, Michigan Manufacturers Association and the Michigan State Medical Society.

Wendy Block, director of health policy and human resources for the Michigan Chamber of Commerce, said the chamber board approved a policy supporting health courts in 2006. Block said the concept of having disputes resolved by specialized courts isn’t new. There are separate courts for worker’s compensation, tax, bankruptcies and domestic relations disputes, for instance. The chamber generally supports specialized courts where there are complex and technical subject matters that demand more expertise for dispute resolution, Block said. She said the chamber also favors the idea of specialized business courts.

“We think it’s a good idea to have judges dedicated full-time to resolving health care disputes and not juries, which usually lack scientific and medical training,” Block said. “We think that patients that are injured by mistake should be compensated without waiting years and without paying a third or more of their settlement to their lawyers. Also, doctors charged unfairly would be protected under a health court system.” 

Nancy McKeague, corporate vice president of the Michigan Health and Hospital Association, said the association supports the establishment of health courts because they would bring some expertise to bear on really complicated health matters before the court.

“We believe that by moving to that sort of model, we accomplish two things: We reduce unnecessary litigation and, equally importantly, we assure more settlement dollars more quickly to people who have been injured as a result of medical incident,” McKeague said.

David S. Zurvalec, vice president of industrial relations for the Michigan Manufacturers Association, said the health court concept has garnered a lot of bipartisan support. He said the hope is that with health courts, the state would have a more reliable system of medical justice. Because of the vagaries of the current jury system, jurors can’t all be experts, so there’s a lot of inconsistency in malpractice case outcomes, he said.

“For over 100 years we have had special tribunals where the expertise is required,” Zurvalec pointed out. “With health courts you would have a system that wouldn’t take three to five years to resolve a case. Health courts would be reliable and speedy and consistent. That’s the workers’ compensation model.”

According to Zurvalec, the system hinders patient safety by discouraging health care providers from reporting errors and near misses due to the fear of multi-million dollar judgments. The legal system doesn’t reward doctors and hospitals for coming forward with the truth about their mistakes, so it creates kind of a bunker mentality, or culture of defensiveness, that adds to the skyrocketing cost of health care, he said. Add to that the fact that doctors are quitting or not entering certain specialties because the liability is so great, he said.

The American Bar Association has passed a resolution condemning specialized health courts. According to the ABA, empirical studies show that juries are competent to handle medical malpractice cases. Unlike the Meadows proposal, a bill proposed at the federal level — the Fair and Reliable Medical Justice Act — additionally calls for compensation to be awarded according to a “damage schedule of awards” that specifies value ranges for specific kinds of bodily injury, which is another concept the ABA doesn’t buy.  

The State Bar of Michigan has not taken a position on the Meadows proposal that is now in draft form, said Elizabeth K. Lyon, public policy program analyst and director of governmental relations for the state bar.

The Michigan Defense Trial Council is against Meadow’s health care court proposal and the Michigan Association for Justice is skeptical of it. MDTC President Peter Dunlap, who has been following the Meadows proposal, said he doesn’t believe health courts are needed. Under Rep. Meadows’ proposal, a committee would be formed to develop a judicial training program that would include equal representation from the Michigan State Medical Society and the State Bar of Michigan. Dunlap said it’s difficult to imagine how the medical society’s presence on the committee would not be perceived by the public as unreasonably favoring one side of the medical malpractice disputes.

“In a medical malpractice suit you have two sides — the physician on one side and the injured patient on the other side,” Dunlap said. “It’s not too fair to have a representative for a group from one side and not the other. The whole concept is an adversary system where you have two equal sides opposing each other with a neutral body — a court or jury — to decide the issue. Representation of the medical society is clearly, to me, an attempt to skew the dialogue one way.” 

Jesse Green, director of communications for the Michigan Association for Justice, said the association is always a little skeptical of “special interest” courts that take grave matters out of the court system and put them into a private-sector-like situation where some of the involved parties are actually making the decisions. MAJ believes the current court system is sufficient for handling malpractice cases.

The skepticism revolves around the idea of adjudicating malpractice disputes to an environment that doesn’t involve attorneys, thus stripping them of the constitutional right to legal representation, Green explained. In a court system that is sort of administered by medical professionals, the objectivity of the decision making and the integrity of the court could be called into question, he said. 

“It’s an important issue. We’re looking at this, we’re examining this and trying to be fair,” Green said. “But, in general, it’s hard not to be skeptical. If drunk drivers wanted to have a special court where only drunk drivers got to make the decisions about whether or not drunk drivers hurt people, you’d have to be skeptical.”

Furthermore, there’s no evidence to support the need for health courts, Green said.

“We have a situation in Michigan where medical malpractice filings are down, and even the insurance industry says that payouts have dropped by 75 percent in the last 10 years.” HQX

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