Medical malpractice insurance rates are sky high–$26 billion annually, up 2,000% since 1974, twice the inflation rate of medicine.¹ This maddening increase is spawned by the unpredictability of the legal system that is driving "defensive medicine."

A recent study estimates the cost of defensive medicine, not including future complications such as cancers associated with rampant CT scanning, to be $1.4 billion per year–in Massachusetts alone. In that study, 84% of physicians interviewed said they engage in defensive medicine because they are afraid of being sued. ²

Other studies estimate the cost to our nation to be between $60 billion and $124 billion per year, with an additional $38 billion in reduced access to health care, which is already a critical problem.³

Practicing defensive medicine is not an unpredictable response on the part of physicians, who should be afraid of being sued. Each year, one in four physicians is sued, with one in two being sued sometime in his or her career.⁴

The medical-legal system in this country is so unpredictable that one can argue that even where a standard of care is met, defendants are at risk of losing their case.

The flaw is that cases are decided by each jury without any consistency or precedent. And when the case is lost, it can be monumental–52% of awards now exceed $1 million, and the average award is a staggering $4.7 million.⁵

And this is because a mistake was made–sometimes. It was a mistake that many physicians under the same circumstances could make. That is what spawns this madness and fear.

What is frustrating is that the awards usually far exceed the cost of paying for the injury, because they include nebulous noneconomic damages.

The awards keep escalating because once a precedent is set, a new number is out there and similar awards are no longer considered outrageous. The numbers just keep creeping up higher and higher. There is a concept in law that a victim should be made whole, yet they should not receive windfall profits.

Somehow, everything has gotten out of whack, and we need to correct it for the safety of our patients and the sustainability of our health care system.

Part of what drives this are the contingency fees of up to 40% (after litigation costs, of course) demanded by plaintiff's attorneys. This is considered unethical in countries such as England. One can see why.

We need to stop our foot pounding and finger pointing and get down to business. We need to leave our self interests and lobbyists at the door. Let's look at the whole picture and make lasting changes that are sustainable.

Beyond addressing access to care, we can improve the cost/inflation of health care so that the patients, physicians, and the taxpaying public all benefit.

One possible solution is actually quite simple, has been on the table for well over a decade, and has been supported strongly by the American Medical Association and other nonprofit groups: the establishment of health courts.

In 1995, the ACEP Board of Directors adopted a policy statement saying that the College "endorses the need for comprehensive litigation reform and supports the concept of health courts as an alternative to the current process."

The hallmark of health courts would be full-time judges who are trained in health care issues. A limited set of full-time judges would help to define and interpret standards of care in malpractice cases, relying on neutral experts paid by the court. They would ensure that patients who are injured by medical mistakes are fairly and promptly compensated, with the goal of resolution within 1 year of filing the claim.

Currently, the average time to resolution is about 5 years, blocking the patient from the compensation they need and deserve, increasing the stress on all involved, and dramatically increasing administrative costs of litigation.

There would be no cap on economic damages, but noneconomic damages would be based on a fee schedule established by a health court task force.

Having a limited number of judges who are specially trained and who hear only these cases would allow more accurate decisions based on standards of care, and written judgments would create predictability in similar cases.

This, in turn, would greatly reduce the practice of "defensive medicine" and could also thereby potentially stabilize malpractice insurance costs, as litigation would be much more predictable. Litigation costs would drop to about 15% (based on models currently used in New Zealand, Sweden, and Denmark), and awards would more accurately and fairly reflect damages.

Medical law is complex, and fair and consistent decisions require some modicum of training and experience. It is unfair to think that juries, who are typically uneducated in this regard, can reach consistent conclusions using different sets of rules, varying by state.

They are being asked to decide, essentially, the standard of care, even while experts within the field of medicine disagree. Wild disparity in judgments comes from lack of knowledge, education, and training on the part of the fact finder (judge or jury).

This brings up another point. There is significant variation across the states with respect to expert witness laws, which also creates great unpredictability and unfairness.

In some states, for example, the expert must be of the same specialty as the defendant. In other states, that is not the case. This means that some emergency physicians can be held to the same standard as a specialist in neurology, cardiology, and so on.

Health courts would standardize these expert witness laws by requiring that the expert be in the same specialty as the defendant, leading to increased predictability, less forum shopping, and decreased overall health care system costs for the same reasons as previously stated (decreased malpractice inflation, decreased practice of defensive medicine and access to care, decreased costs of litigation).

These savings are not trivial. We are talking about potentially more than $100 billion per year.

Health courts could also improve patient safety. Ultimately, what we want are fewer medical errors and decreased harm to our patients.

Health courts would encourage reporting of medical errors by creating a system of reporting that is nonpunitive, confidential, and not subject to discovery in legal proceedings. This would encourage improvement in systems errors and allow for root-cause analysis to prevent future similar mistakes.

Why should there be specialized courts for health law?

First, there is precedent for creating specific courts for other areas of law that are complex, such as probate, bankruptcy, etc. The complexity of health law lends itself well to a specialized court with well-trained and experienced fact finders.

Second, there is a clear need to improve time to disposition, to reduce costs in the health care system as a whole, and to improve patient safety.

Creation of these courts is a potential solution that should be seriously considered as part of our health care reform and should be a part of the debate.

Every patient harmed by a medical error should be fairly compensated, while minimizing the costs of this litigation. And health care providers should feel safe to report errors in an attempt to improve systems and patient safety.

Health care providers should be confident in knowing what the standard of care is, and feel safe in practicing that.

DR. STANKUS is an emergency medicine resident at the University of New Mexico and is a former medical malpractice defense attorney. She is a member of ACEP's National Medical Legal Committee.

References

1. Tillinghast-Towers Perrin. US Tort Costs: 2003 Update, Trends and Findings on the Cost of the U.S. Tort System 17 (2003).
2. www.massmed.org/defensivemedicine.
3. Kessler, McClellen. Do Doctors Practice Defensive Medicine? The Quarterly Journal of Economics. 1999; 111(2):353-90.
4. Dodge, Fitzer. When Good Doctors Get Sued, Dodge Publications. 2001.
5. Jury Verdict Research: Verdicts, Settlements and Statistical Analysis 5, 8 (Brooke J. Doran, ed., 2005).