EDITORIAL

Expert medical courts: An idea whose time has come

We may have seen the first glimmer of light in the otherwise dark tunnel of the professional liability insurance crisis. On July 12, during a speech at the National Press Club, U.S. Senate Majority Leader Bill Frist proposed "an expert medical court system with transparent decisions, limits on punitive damages, and scheduled compensatory damages to provide rapid relief to truly injured patients (instead of trial lawyers)" while holding negligent doctors accountable.¹ In these special health courts, full-time, dedicated judges would rule on issues of medical liability, supplanting the unpredictable, inconsistent, random jury decisions that now result in wildly discordant rulings from case to case.

Frist's proposal could not come too soon. In July, Massachusetts became the 20th entry on the American Medical Association's list of states affected by the professional liability insurance crisis.² According to the Massachusetts Medical Society, in that state jury awards over $2 million have jumped fourfold in the past 5 years, and 64% of ob/gyns now report limiting the scope and/or nature of their practices because they fear litigation. Moreover, liability insurance premiums have increased 99% in Massachusetts since 1998, with ob/gyns now typically paying $97,000 a year.^3-5

A former academic surgeon, Frist is a strong voice in the Senate on the side of physicians. One of the staunchest advocates of tort reform, he also is the most dogged supporter of ob/gyn-specific relief. Three times in the past year, Senate Democrats have used filibusters to rebutt Frist's proposals for tort reform to dramatically improve the professional liability crisis for ob/gyns.

Frist's new proposal—a court system virtually identical to one endorsed by the bipartisan Common Good⁶—would produce:

1. Consistent judgments on standards of care by court-appointed experts. Chosen with the help of such organizations as the American College of Obstetricians and Gynecologists, the experts would render opinions based on solid peer-reviewed evidence and guidelines published by medical societies. However, reasonable, prudent, and justifiable clinical alternatives employed to accommodate a patient's individual circumstances or based on new, peer-reviewed scientific findings also would be acceptable. Physicians who follow the court-approved standards would have an immediate affirmative defense to a claim of medical negligence. The result: swift elimination of frivolous suits, predictable outcomes, and increased fairness—in other words, justice.

2. Truth seeking rather than adversarial confusion. Data would be gathered by the court's objective experts, not by plaintiff and defense attorneys. This would eliminate the high level of conflict and theatrics that pervades—and some would say perverts—the current system. It would also reduce the amount of work done by attorneys, and thus their charges.

3. Rational and dispassionate settlements, based on true economic losses. Frist's proposal provides heavy incentives for quick claims settlement by both sides and holds recalcitrant plaintiffs who refuse such offers to a higher burden of proof. Compensation would be uniform, fair, and codified. For example, all victims of cerebral palsy as a result of medical negligence would be paid on a sliding scale, according to severity as defined by published disease criteria and guidelines. Non-economic damages would be strictly limited and awarded according to empirically derived formulas. Collateral sources of income, such as life, health, and disability insurance, would be considered.

4. Accountability for negligent and reckless providers. The courts would work with state medical societies and specialty boards to ensure that their members uphold the highest standards of professionalism. The specialty boards would be given greater authority than existing state agencies for monitoring physician performance and responding to substandard practice. The American Board of Obstetrics and Gynecology, for example, would be authorized to revoke certification of physicians who repeatedly provide substandard care.

5. Powerful incentives for quality improvement in medical systems. Freed from potentially catastrophic, capricious, and unpredictable jury verdicts, individual practitioners, health-care systems, and managed care plans could focus on transparency in error reporting to reduce mistakes and enforce standards of care. The government would establish a Patient Safety Reporting System, similar to what is used in the aviation industry. Useful information, stripped of details that would identify health-care providers and their patients, would be submitted to this database and analyzed to help clinicians learn from their mistakes.

6. Administrative efficiency and cost reductions. Our current litigation system returns 22 cents on the dollar to victims for economic losses!⁷ An almost equal amount—19 cents—goes to plaintiffs' attorneys, 24 cents is for noneconomic damages, and 21 cents for administrative costs.⁷ Moreover, it takes 45 months from negligent incident to payment.⁶ Expert medical courts would dramatically reduce extraneous costs and provide real victims with prompt, fair payments, while limiting attorney contingency fees to hourly rates or a small percentage (such as 10%) of settlement offers.

How do we create a medical court that will provide these advantages? One way is to have Congress authorize such a system and appoint dedicated and knowledgeable judges while medical societies and professional organizations nominate experts, with input from specialty and subspecialty boards. Such a court would be similar to those used to adjudicate tax disputes and vaccine liability cases. Alternatively, Congress could establish a federal medical administra-tive tribunal similar to that used for workers' compensation cases. A third scenario is a system of physician-patient contracts with binding arbitration and hearings before a dedicated judge to adjudicate negligence.

Regardless of the venue, an expert medical court system seems far superior to what we have. Now, a jury of laymen with little or no medical or scientific knowledge assess the validity of claims by dueling experts, which often are rendered in the arcane language of academic medicine over several weeks in an emotionally-charged, conflict-laden setting full of superfluous distractions. Indeed, a recent Harris poll conducted for Common Good found that 62% of American adults favor having medical malpractice lawsuits tried in special health courts.⁶ Senator Frist is to be congratulated for his bold vision and commitment to America's doctors and their patients. We need to rally behind his effort by joining and supporting Common Good, lobbying our legislators, and becoming actively involved in local, state, and national political races.

REFERENCES

1. http://cgood.org/healthcare-newscommentary-inthenews-140.html. Accessed August 2, 2004.

2. Albert T. AMA to study liability surcharges. American Medical News. July 5, 2004; 47(25):1.

3. Medical liability awards holding steady third year in row. BestWire. A.M. Best Company, Inc., Washington, DC: April 2, 2004.

4. Medical Liability Monitor, Oct. 2003.

5. Gulla RP. Massachusetts physicians face fourth consecutive double-digit jump in annual medical liability premiums [press release]. Waltham, Mass: Massachusetts Medical Society; May 17, 2004. Accessed August 2, 2004 at http://www.massmed.org/pages/pr051404_profliability.asp.

6. Elements of a System of Medical Justice, Compiled by Common Good for "Liability and Patient Health," a forum cosponsored by the American Enterprise Institute (AEI)-Brookings Joint Center for Regulatory Studies and Common Good, March 4, 2003.

7. Tillinghast-Towers Perrin. U.S. Tort Costs: 2003 Update. Trends and findings on the costs of the U.S. tort system.

Charles J. Lockwood, MD

Charles J. Lockwood, MD, Editor in Chief, is Anita O'Keefe Young Professor and Chair, Department of Obstetrics and Gynecology, Yale University School of Medicine, New Haven, Conn.

Charles Lockwood. Editorial: Expert medical courts: An idea whose time has come.

Contemporary Ob/Gyn

Sep. 1, 2004;49:11-12.