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'Almost Random'
"Justice in health care today is almost random," says Philip K. Howard, the lawyer and author who founded Common Good, based in New York and Washington, D.C. "Most people who are injured get no compensation, and especially in tragic circumstances, doctors who did nothing wrong are sometimes found liable for millions."

Criticism has increased with the rise of the patient-safety movement. The Institute of Medicine report "To Err Is Human" estimates that bad outcomes caused by errors occur in about one percent of U.S. hospitalizations. According to one of its authors, Lucian Leape, an adjunct professor of health policy in the Department of Health Policy and Management at HSPH whose malpractice research in the early 1990s ignited the safety movement, those errors lead to hundreds of thousands of injuries and as many as 98,000 deaths every year.

Yet less than five percent of all injured patients ever seek or receive compensation, Mello says (see box on page 1). Moreover, there's little evidence to support malpractice lawyers' position that they are weeding out bad doctors and saving lives by winning large settlements for patients.

In fact, notes Howard, the tort system perpetuates bad medicine by making doctors fearful of admitting to and addressing their mistakes. "It has infected health care with a debilitating distrust that drives up costs through defensive medicine," he says. A 1992 study estimated that between $5 billion and $15 billion was wasted on tests ordered by physicians seeking to protect themselves against potential lawsuits. And in a survey of 824 Pennsylvania doctors that Studdert published in the New England Journal of Medicine in May, nine out of ten said they "sometimes or often" practiced defensive medicine.

Boston defense attorney George Wakeman, who has defended physicians in malpractice cases for more than 20 years, thinks doctors would welcome health courts. "Even if physicians had a finding go against them, they would feel they had been much better served, because their case had been reviewed by their medical peers," he says.

Health courts would not directly discipline care providers, Mello notes. Instead, their rulings could be transmitted to state licensure boards and professional societies for further action. How this transfer might be accomplished is a matter for study and debate, she says.

Like many malpractice lawyers, Massachusetts malpractice king Andrew Meyer defends the tort mechanism. "It's the worst system in the world, except for all the others," he says, echoing Churchill's famous quip about democratic government. "I have faith in the common sense of a jury of one's peers, as opposed to individuals who fancy themselves experts."

In fact, the proposed elimination of jury trials will likely render health courts unconstitutional, charges Stephanie Mencimer, a contributing editor of The Washington Monthly who writes about malpractice and legal-reform issues. "Lost in all the jury-bashing inherent in the health court proposal is basic American history: A lot of blood has been spilled in this country to secure the right to a jury trial in a civil case--a right guaranteed in the 7th Amendment," Mencimer wrote recently in an online debate with Common Good's Philip Howard.

But supporters point to a number of durable precedents in the U.S.: administrative systems for workers' compensation, Social Security disability insurance, vaccine injury liability, as well as for maritime, tax, and bankruptcy-related matters. Besides, Mello notes, the right to a jury trial is not one most litigants exercise. "Most Americans believe that the jury trial is a profound right that can't be taken away from consumers," she says. "Often overlooked is that 90 to 95 percent of malpractice cases are never heard by a jury."

The Question of Cost
Another controversial issue: Are health courts affordable? Mencimer is skeptical. "Payments would be lower and more predictable than jury awards, but a lot more people would get them," she says. "So doctors' insurance premiums would have to be exponentially higher, or the compensation levels would wind up being too piddling to matter."

To look at just this question, Studdert and Brennan applied a health courts scenario to malpractice-award data in Colorado and Utah from 1992. They compared insurers' total cost of compensating injured patients under two scenarios: current malpractice litigation and a health court model that applied the Swedish avoidability standard. They found that six times as many patients could be compensated by the latter, at roughly the same cost.

But would patients' compensation be "piddling," as Mencimer predicts? In Colorado, a patient could have received payment of all medical expenses, full replacement of lost income, and up to $250,000 in pain and suffering. In Utah, the package would have been similar, except that patients would have recovered only two-thirds of lost wages.

"Mencimer and other critics raise important questions but provide no evidence to back up their assertions," Studdert notes. "That's why we need pilot projects. Let's run them for three or four years and see what they cost."

The avoidability criterion is "a somewhat slippery concept" whose definition varies slightly from one country to another, says Studdert, adding that defining the term for use in a model health court proposal for the U.S. is among the researchers' tasks. In Denmark, he says, "it all boils down to, 'would reasonable specialists have been able to avoid this particular outcome if they had done something differently?'" If so, the injury merits compensation. New Zealand just this year eliminated this hurdle, awarding payments to all injured patients--a truly no-fault arrangement.

Considering Alternatives
Over the past two decades in the U.S., alternatives to litigation have been proposed. In the 1990s, a no-fault compensation system received serious consideration in Utah and Colorado following a crisis caused by soaring malpractice insurance rates. But momentum faded once those rates stabilized.

Florida and Virginia have implemented no-fault schemes in cases of babies born with devastating neurological injuries. In these states, obstetricians and hospitals pay into a fund from which parents can draw compensation if experts determine that their infants' injuries meet certain clinical criteria and were related to the birthing process. There's no need to prove negligence.

Gil Siegal, an Israeli physician, law professor, and research fellow at Harvard Medical School who is studying the Florida and Virginia programs, notes that they represent a limited test of the health court principle, and that feedback on them has been mixed. For one thing, they deal with a very narrow and specific medical condition, and in Virginia, where the program isn't mandatory, many doctors and hospitals don't participate. For another thing, trial lawyers claim the Virginia program isn't fair--too many injured-baby cases are initially rejected without a just and adequate legal process, says Siegal, a consultant on the HSPH project.

Building Political Will
An unusual feature of the project, funded with $1.5 million from the Robert Wood Johnson Foundation, is the partnership between HSPH researchers and Common Good. Pairing the advocacy organization with the Harvard academics was deliberate, according to Nancy Barrand, the RWJF program officer who collaborated with Harvard in proposing the project to the foundation. "Common Good is hoping to pave the way to test this idea, but they can't do it without the development work that Harvard needs to do," she says. "And Harvard isn't going to go forward without the advocacy of Common Good to get political buy-in."

The health court concept has already won bipartisan support from university presidents as well as medical and public health school deans; the Joint Commission on the Accreditation of Healthcare Organizations; high- ranking government officials, including Republicans Newt Gingrich and Senate Leader Republican William Frist; other health care and legal leaders; and editorial writers at the New York Times, Los Angeles Times, and other media outlets. And according to a national survey conducted last spring by Harris Interactive for Common Good, nearly two out of three Americans favor health courts.

Even so, Mello predicts this innovation may be a "hard sell," given trial lawyers' lobbying power and Americans' knee-jerk propensity to sue. Health courts have tended to flourish in countries where health care is publicly funded, litigation is far less common, and people are generally content with less, including modest compensation for personal injury.

Until now, the U.S. has merely tinkered at the margins of malpractice reform. A growing awareness of medical errors has prompted the public to insist on safe and appropriate medical care. When Americans finally become skeptical of the notion that costly battles between lawyers and doctors is the way to better medicine, they just might be ready to give health courts a chance.

In June, the HSPH researchers returned from Denmark, encouraged by what they observed. Says Studdert: "To go where these systems are functioning well despite the difficult and challenging issues--that's very exciting."

"The question is: In two years, are we going to be in a political climate in which people are willing to come to the table?" asks Mello. "I hope so. After all, we need only one state to sign up for a demonstration project to get things going."

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Richard Saltus has been a reporter for the Associated Press, the San Francisco Examiner, and the Boston Globe. He writes frequently about medicine and public health.