Suspecting that 22-year-old Amy had endometriosis, doctors snaked a fiber-optic tube through her navel and into her body to examine her uterus. But something went wrong: the laparoscope pierced her intestine, causing an abdominal infection that forced surgeons to stitch the bowel to a temporary opening, or colostomy, while she healed.

In the United States, Amy might have sued for malpractice, provided that she could find an attorney willing to take on a complicated, costly case that wasn't a sure winner. If the suit ever reached court--malpractice suits typically take three to five years, and most don't get that far--a lay jury might have awarded her millions of dollars, or nothing at all.

But Amy lives in New Zealand, which eliminated "malpractice roulette" 30 years ago. Instead, medical-injury claims are resolved by a government agency through a process akin to workers' compensation. Medical and legal experts, not juries, evaluate claims and compensate patients according to a formula oriented to meeting their practical needs. Within a few months, Amy received $28,000 to cover temporary lost earnings and expenses such as transportation, home help, and child care. In addition, she received free medical and surgical care through New Zealand's government-funded, universal health care system.

"Awards in New Zealand are generally more modest, but they are also fairer and more transparent," says physician-lawyer Marie Bismark, a 2005 Harkness Fellow in Health Care Policy at the Harvard School of Public Health (HSPH) who advises New Zealand's health and disability commissioner. "When I see multimillion-dollar awards for bowel perforations like Amy's in the U.S., I have to wonder whether some of that money might be better spent on improving patient safety, or shared among a greater number of injured patients."

JUSTICE FOR SOME
3 to 4 percent of all episodes of medical treatment in the U.S. result in injuries. At most 5 percent of all patients injured file a malpractice claim.

Of those patients who file claims:

68 percent see their claims dropped or dismissed

27 percent see their claims settled

4 percent go to trial and lose

1 percent got to trial and win.

Source: Presentation by Lawrence E. Smarr, president of the Physicians Insurers Association of America (PIAA), to the American College of Surgeons on June 23, 2003, drawing from information from the PIAA Data Sharing Project and relating to outcomes of malpractice cases closed in 2002. For details see http://www.facs.org/about/chapters/smart.pdf

Could a system like this work in the U.S., where malpractice litigation is under fire for being slow, costly, and unfair? That's precisely what a trio of HSPH researchers is hoping to find out. They're developing a model "health court" that would replace jury trials, and they hope to see it tested in one or more states within a few years.

"We want to take the best of what we know now and test it against the personal-injury, or 'tort', system in a number of settings," says David Studdert, HSPH associate professor of law and public health. "We think it will show good results, and that people will want to move in that direction."

Leading the team that includes Studdert and colleague Michelle Mello, associate professor of health policy and law, is Troyen Brennan, HSPH professor of law and public health and a physician with Partners Healthcare System in Boston. The three have published numerous analyses of the malpractice system's shortcomings and believe there is much to learn from the experiences of New Zealand, Sweden, and Denmark.

While details vary among countries, the essential components of schemes that use specially trained experts instead of juries are these:

  • Full-time judges or administrative panels, assisted by medical experts on staff, issue written rulings that set guidelines for appropriate medical practice;
  • Neutral medical experts hired by the court as needed;
  • A liberalized standard for defining medical mistakes, so that compensation is automatic in all cases where the injury is found to have been "avoidable" (in contrast, the U.S. tort system only compensates plaintiffs who manage to persuade a jury that one or more caregivers acted "negligently," outside the accepted norms of medical practice);
  • A uniform set of payments for "non-economic" damages--that is, damages for pain and suffering--distributed according to a formula that accounts for differences in the severity of injuries.

Over the next two years, HSPH's health policy researchers will develop a health court model meant to be compatible with the American health care and legal environment. Thorny questions of cost, constitutionality, jurisdiction, an appeals process, and the mechanics of selecting judges must all be addressed.

The Harvard team is working in partnership with Common Good, a bipartisan coalition that is building political support for pilot tests of a health court model. Recently, bills were introduced in both the Senate and the House of Representatives to authorize funding for pilot projects in several states. Hearings on the proposed legislation are expected later this year.

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