CTS: I graduated from Harvard Law School and spent a year after that clerking for a federal judge on the U.S. Court of Appeals for the Second Circuit. After that I spent four years as a litigator at a law firm in New York City where I worked on a variety of different types of cases, and then joined the Penn law faculty in 2000. I teach and research in the areas of litigation procedure, so I’m very interested in the ways in which the procedures for litigating affect the way in which people are able to enforce their legal claims. William Sage, who is the principal investigator for the Project on Medical Liability in Pennsylvania, asked me to look into the questions that have been raised with respect to the procedures used in malpractice litigation and also the proposals for reforming those procedures.

CTS: It is clearly worthwhile to ask the question, "How would an improved version of the current system stack up against one of the alternative substantive liability regimes that have been proposed?" It’s necessary to compare the costs and benefits of the current system with the costs and benefits of those systems, bearing in mind that they would not necessarily provide a perfect solution, either. My focus was on the assumption that we continue to maintain our current system of substantive liability rules - with juries determining questions of liability and damages - and ask how well the system is doing in processing claims under those rules, and what measures we can take to help the jury do its job better.

CTS: What I found as I looked at the existing critiques of the litigation system in medical malpractice is that a lot of people have raised serious questions about the capabilities of judges, juries and plaintiffs’ lawyers who are involved in medical liabilities litigation. Questions have been raised, for example, as to the decisions that plaintiffs’ lawyers make in selecting which cases to take, as well as the ability of judges to oversee the process of litigation - including with respect to expert testimony. Questions have also been raised with respect to juries’ ability to distinguish good claims from bad. With that in mind, I decided to see what data exists concerning the performance of each of these groups and also to look at what data we have concerning whether certain procedural changes could improve performance.

What I first did was look at the evidence that we have concerning claiming in malpractice: there are findings that I think are relevant to the questions about the procedures that are used. There is evidence that there is a gap between the number of patients who are injured as a result of negligent care and the number of people who eventually bring claims as a result of those injuries: relative to the number of injuries for negligent care, the number of claims actually brought is quite small. In a Harvard medical practice study they found roughly 27,000 patients were injured as a result of negligent care but, with respect to the same time period, fewer that 3,800 patients actually asserted a claim. There also is evidence that there is a mismatch between the patients who are injured and the patients who ultimately end up bringing claims: the researchers matched 47 claims that were in malpractice insurance files to actual hospital records and determined that there was harm from negligent care in only eight out of those 47 claims. That raises an issue about whether plaintiffs’ lawyers should do a better job of screening out invalid claims at the front end in making a decision as to whether to represent a plaintiff.

Some have attempted to address the issue by introducing a certificate of merit requirement in medical malpractice litigation, to require that the plaintiff have an expert review the case at the outset of the suit and certify, based on the available information, that there’s a reasonable likelihood that the plaintiff was harmed by negligent care. This requirement has been instituted in 17 states, including Pennsylvania. So, one question is, "Could this provision help to improve the decision-making by plaintiffs’ lawyers concerning which claims to bring?" What I found when I looked at the data is that some plaintiffs’ lawyers who handle malpractice claims are specialists in medical malpractice and will already do a good job of screening which claims they bring. They already are very likely to consult a medical expert prior to accepting the case. On the other hand, a significant number of malpractice claims are brought by lawyers who do not specialize in medical malpractice and those lawyers may not do as good a job of screening the case before they decide to take it. My conclusion is that a certificate of merit requirement such as the one that Pennsylvania has recently adopted holds some promise of improving the decision-making of the plaintiff lawyers who are not specialists in medical malpractice.

CTS: The second set of measures that I looked at are medical screening panels, which sets up a system that would be used at, or near the outset of the litigation, ordinarily. A panel would be made up either partly or entirely of physicians and would review submissions and possibly presentations by both the plaintiff and the defendant, and then would determine the merit of the claim. In some systems, the panel would determine liability only; in other systems the panel would determine both liability and damages. The determination is not binding but it is, in many systems, admissible at any subsequent trial. A panel thus can serve several functions: to identify potentially weak claims early in the litigation; to encourage settlement of valid claims; and also, in cases that do not settle and proceed to trial, to provide a neutral source of expertise that can help to inform the jury’s view of the case at trial. Currently there are two legislative proposals for screening panels in Pennsylvania: House Bills 22 and 476.

Over the past few decades, some 31 states have adopted panels, but only 20 states still have panel systems because, in the other states, the panel systems were either repealed by the legislature or overturned by courts. The findings on panels’ effect on malpractice cases are not encouraging. Pennsylvania adopted a panel system and it was, unfortunately, found to cause delays, which ultimately led to the Pennsylvania Supreme Court’s invalidation of the panel system because it impermissibly burdened the right to a jury trial. Some other states have reported similar problems with delay.

In terms of the findings on the effect on malpractice claims in general, panels appear to increase the costs of pursuing a claim to trial because they force the parties to try the claim twice, once before the panel and once at trial. There is some evidence that the existence of a panel system increases the probability that plaintiffs will drop their claims without payment, but the data do not tell us whether those claims were dropped because they were found to lack merit or because the cost for pursuing them had risen. However, there is also some evidence that panels are associated with a greater rate of malpractice claiming, so there is a possibility that the existence of a panel system might encourage plaintiffs to bring claims that they might not otherwise have brought. The evidence does not suggest any systematic effect of panels on the size of the claims that end up being paid, and the evidence concerning effects on malpractice premiums is inconclusive. One study found that there was a decrease in premium levels, but it used quite early data. Another study that used data from a longer time period found no statistically significant effect on premiums for either general practitioners or general surgeons although it did find a statistically significant reduction in premiums for OB/GYNS. There is, then, the possibility that panels may, at least for OB/GYNS, produce a reduction in premiums. But that does not necessarily answer the question of whether panels provide a benefit overall. If they produced a reduction in premiums by discouraging the assertion of valid claims, for example, that would undermine the argument that panels were a good option for improving the system.

One other issue is whether panel findings on liability and damages also can be a source of neutral information that the jury could use in cases that go to trial. Panels do not seem well-designed to serve that role. For one thing, most cases do not make it all the way to trial; 90 percent of cases that are brought are resolved prior to trial. Also, the prospect that the panel findings could be put in front of the jury if the case does go to trial will provide an incentive for the parties to engage in longer and costlier panel proceedings. Thus, the goal of using panel findings to provide expertise to the jury at trial conflicts with the goal of using panels to provide a quicker mechanism for resolving claims earlier in the litigation process. This conflict in the goals of panels may explain why, overall, they don’t appear to provide benefit in improving the system.

CTS: Yes: specialized medical liability courts. These have not yet been adopted in any state, although there are proposals currently pending in Pennsylvania: House Bills 23 and 1199, and Senate Bill 204. In addition, this is a proposal that is advocated by an organization called Common Good. Their focus is on the notion that a specialized court could provide expert judges who would rule on the question of standard of care, and their argument is that this would provide more consistency in the standards that would govern medical care. One question, then, is to what extent it is actually possible to build a body of precedents concerning standard of care. Common Good would like to set the specifics of the standard of care as legal precedent, which would be binding in subsequent litigation as well as in the present litigation, and which somebody could consult when they wanted to know what the standard is with respect to a particular type of procedure with particular facts. The question of negligence in tort law, however, is normally a question of fact for the jury - whether a defendant met the standard of due care or did not meet it and was therefore negligent - and ordinarily it doesn’t produce a body of legal precedents that will tell you what kind of behavior constitutes negligence. There only are precedents about what constitutes the standard of care in very extreme cases. On the rest of the spectrum in between, those are questions of fact for which there is not a body of precedents, but rather a body of decisions in each case by juries who look at the question anew. Common Good’s proposal to make this a question of law that builds a body of precedent which would be binding in subsequent litigation is a departure from the way in which tort law normally treats the question of negligence. Whether it is a feasible thing to do is another question. I have not looked at that question in depth, but I do have some questions about how helpful it would be to try to develop such a body of precedent because each case may present unique facts that may make a precedent in a prior case not very useful in predicting how the present case should come out, and also, medical standards presumably change over time with advances in medical knowledge.

As Common Good points out, you would gain some benefits in terms of the expertise of the judges on a specialized court and perhaps in terms of some increased uniformity and consistency of the court’s decision at the trial level. Balanced against those benefits are considerable potential costs. In particular, a lot of the potential risks created by a specialized medical liability court depend on the specifics of the way in which the court is set up. For example, in the proposals that are pending in the Pa. Legislature, these courts would have elected judges. A court staffed by 18 elected judges contains a particular risk of politicization that would be exacerbated because an election for a judge to the specialized court would attract the attention of the repeat players on both sides. The players who tend typically to be defendants in medical malpractice cases and the interests that tend typically to represent plaintiffs in malpractice cases both would have reason to focus on the candidate for election to such a specialized court. This dynamic would render the court much more vulnerable to politicization, which is not a good way to set up a court that will resolve these issues in a fair and neutral manner.

CTS: Some specialized courts already exist in certain areas and there is some literature on specialized courts in general. Basically, I agree with the conclusions of a number of commentators who have pointed out the risk that, if you devote a particular court entirely to considering particular issues, that increases the risk that the selection of judges and the attempt to influence in various ways the decision-making of judges on that court will attract a lot more political attention than would be attracted by the selection process for a judge who hears lots of different kinds of cases. Moreover, some specialized courts deal with disputes that, although they concern a particular kind of question, do not always have the same interests on the same sides of the question. Patent law is a good example. Any given corporation might be on one side or the other of any given patent dispute, depending on a particular case. For medical malpractice, on the other hand, doctors are going to be defendants, plaintiffs’ lawyers are going to represent plaintiffs and that’s going to be true over time, again and again. They will therefore have an interest in seeing people that they believe will be sympathetic to their interests selected to the court, and that is made much more true if the judges are being selected for a court on which they will hear only medical malpractice claims and not also other types of claims.

CTS: So long as the question of due care remains a question for the jury, the judge will not be ruling on that question in any event. However, it is true that even in a system that pre-supposes a jury trial, the judge makes rulings on a number of important issues including those concerning the qualifications of experts. And it’s certainly true that a specialized court staffed by 18 judges could result in a lot more consistency of rulings on the trial court level than are produced by the 50 or 60 different separate courts of common pleas that one finds around the state of Pennsylvania. So, at the trial court level, on the legal questions that judges rule on, a specialized court would increase consistency.

CTS: The current proposals that are pending in Pennsylvania would create a court that sits regularly in six cities in the western, middle and eastern parts of the state and also would sit elsewhere as necessary. But the cities in which they would regularly sit do not include Philadelphia. Each of these courts would draw their juries from areas broader than just one city. The result would be that, under this system, no case would be tried before a jury drawn only from the city of Philadelphia. It seems possible that some of the support for a specialized court of the type proposed in Pennsylvania arises from a wish to insure that cases are not tried to juries drawn solely from the city of Philadelphia. That certainly seems to have been the motivation behind the venue restrictions that were recently put in place in Pennsylvania. Those venue restrictions will prevent cases being tried in Philadelphia that arose elsewhere but they in fact require cases that arose in Philadelphia to be tried there. By contrast, the medical liability court would take those cases as well, and put them before juries that were drawn from a broader area in the state. If the concern is with the performance of the jury, this does not seem like a good way to try and address the issue and there are better ways to tackle the question.

CTS: One thing that critics of the current system cite quite often is the notion that jury liability determinations do not correlate with anything except for the degree of the plaintiff’s disability. The study that many of those critics are citing did find that the degree of disability was the only significant predictor of payment, but that study focused on settlements, which will include not just a view of liability but also a view of the costs of further litigation. There are three studies where researchers tried to compare actual jury verdicts with an evaluation by some independent assessment of whether there was liability or not, and those studies found a correlation between the jury outcomes concerning liability and the independent assessment of the quality of care - providing reason to believe that juries do better than their critics assert on the question of liability.

The evidence on damages suggest that juries do relatively well with economic damages, but that their determination of noneconomic damages such as pain and suffering are significantly more variable, and that juries could benefit from guidance in assessing those noneconomic damages. That was the data from which I drew the basis for my suggestions for improving the system. With respect to noneconomic damages, a very promising proposal is one that Governor Rendell has adopted: strengthening the mechanism of remittitur, whereby a judge may require that the plaintiff accept an award of damages that is lower than what the jury awarded or else have to go and litigate a new trial. It is a way for the judge to exercise supervision over the jury’s determination of damages. The more stringent remittitur proposal that Governor Rendell has set forth is one that has been adopted and has produced promising results in New York state, and it could help to address the lack of guidance that juries currently have in assessing noneconomic damages.

Other proposals that could be useful in certain cases are for improving the court’s handling of expert testimony. In some cases with particularly complex issues or cases where it’s particularly difficult for the jury to get a clear picture of the relevant technical information from the experts hired by the parties, it may be useful for the court to seek a neutral third party expert who could either advise the court how to handle the expert testimony or could also present expert testimony to the jury him or herself. In addition, there are methods for assisting jurors in handling complex issues that may increase the ability of jurors to receive and process complex or technical information - things like fine-tuning the timing of trial presentations so that, for example, a defendant’s expert might be asked to testify right after the plaintiff’s expert has testified so that the jury can better assess the differences between the two witnesses’ testimony. Or, for example, instructing the jury on some of the substantive legal issues before the presentation of the evidence, as well as afterward. A number of these possible avenues for improving a jury’s learning process are being tried in jurisdictions around the country like Arizona, Colorado and the District of Columbia. Data from these experiments will be forthcoming in the next few years as more experience is gained in these jurisdictions and I think it is well worth looking at those options for helping juries to process information in the more complex cases. Those would be the approaches I think would be very promising avenues for helping to improve the current system.