NU: I graduated from Yale in 1995 and I’ve been in private practice for a number of years before joining Common Good in October of last year. The central message of Common Good is that law must be reliable and not change from case to case, and that the unreliable legal system that we currently have is causing a meltdown in American health care. Focusing the lens on the individual person, in terms of rights, has disastrous consequences for common institutions, including health care institutions. What we’ve done is investigate the research that has been done by Randy Bovbjerg, Troy Brennan, the rest of the Harvard medical practice group and other experts, and then thought about it in context of "common good-ness," that is, what are the effects of an unreliable legal system on the health care delivery system. We’ve put together briefs which are available on our website, www.cgood.org, which compile scholarly work with a point of view showing what the effects of law have been on health care since the medical liability crisis began, and what might the elements of a reliable system of justice be. We’ve also looked at work that has been done in other kinds of compensation systems, other kinds of alternative adjudication systems, and also what European jurisdictions do in dealing with claims, to try to pull together a set of materials that is representative of the best thinking on what a good system of medical justice would look like.

NU: I’m not an expert on Pennsylvania, but I think the problem is pretty widely recognized to exist in most of the 50 states. I would say there are four major problems with the current system. It is extraordinarily expensive. It has tremendous detrimental side effects on health care delivery. And it doesn’t achieve either of the two primary goals of the tort system: it doesn’t compensate patients who are injured and it doesn’t deter what we might call bad behavior. Taking those things together, what you’ve got is a system that’s a complete and total failure.

Nationally, you’ve got $28 billion in direct costs of the medical liability system - that’s from the Council of Economic Advisors Report in 2002. You’ve got between $75 billion and $125 billion of defensive medicine costs and also unquantifiable costs: the costs of unnecessary medical errors that could be prevented if you had a system that was more open, transparent and amenable to improving patient safety, which the current system isn’t. The fact that doctors now see every patient as a potential plaintiff is terrible. Not only does the current system chill relations and communication between doctor and patient, it chills communication between doctors and doctors, so that discussions of mistakes and near misses are considered to be risky and dangerous, as opposed to part of a professional interaction. The current system also diminishes access to care. It is hugely expensive and drives up costs as dollars in the health care system are being misdirected to unnecessary treatment as opposed to providing care for more of the uninsured. The current system stifles innovation. Every time you try something new or do something differently, that’s an opportunity for someone to sue you. People are reluctant to innovate, not only for medical care but also for new drugs and devices.

At the most generous estimate, three or four people out of a hundred who are inadvertently injured by the medical system receive any compensation at all from the current system. People who do receive compensation have to give half of that compensation to the lawyers and court costs. And the very few people who do receive compensation are often not the victims of malpractice. Large jury awards correlate almost perfectly with bad outcomes and severity of injury, but not necessarily with bad care or what we would think of as malpractice. Since jury awards and lawsuits really don’t correlate to the existence of bad behavior, what you have is a legal system sending out totally random deterrence signals that don’t make any sense. They don’t deter any particular behaviors that we don’t want, most of which have nothing to do with individual doctors - they are primarily system-type changes that need to happen on the provider or hospital level.

NU: We think the solution is an entirely new system of medical justice. The tort system is so broken that just tinkering around the edges of it, or simply trying to cap damages without making other reforms, isn’t going to solve the problems. We’re advocating either an administrative system or special medical court that has expert decision-makers who can draw on expertise and medical science to make law about the standard of care and about what’s negligence and what’s not. Right now there’s really no law in that area. It just changes from jury to jury. The most important feature of this new system is that it be reliable. We also think that the system has to be accessible to patients and it has to provide the right incentives for good care and for error reduction. As far as whether it will end up being something administrative on a state level, or judicial on a state level, or exactly what form and structure it would take - those are political questions at this point. The details of how it would be funded and who will be on it, we are still working on that.

NU: One possibility is to have enabling legislation to allow a contract between a health care provider and a patient that says the patient will opt into this alternative adjudication system. Then, you provide incentives for patients who want to opt into that system, such as identifying providers who follow the Leapfrog Group guidelines, or providers who have enacted known patient safety improvement measures. Those providers can be certified by NCQA or some other patient safety group and patients or employers can have the option of receiving their care from a quality-certified provider. As a quid pro quo, patients will know that they would have any medical injury disputes adjudicated by this special court or panel of medical experts who provide rapid and fair compensation. Rather than a one in a hundred chance of getting any compensation through the tort system and having to give half of it to your lawyer, it would give a patient access to a system that would be fair and provides compensation on a much more real-time basis than what happens in a lawsuit, which drags on for four or five years. What we’re envisioning is a system that would be much less adversarial. Perhaps lawyers could be paid an hourly fee to represent claimants so that claimants could have access to the system, but the system is not going to have years of discovery and adversarial depositions. The court might examine experts or conduct inquiries into the facts in a more rapid timeline, in a style that could be similar to the way in which arbitration is now performed. The information would be freed from the gamesmanship, delay and litigation tactics that typically go on currently.

NU: Any system that is reliable and treats like cases alike is going to have important determinants of fairness. What would make it more reliable is having expert decision-makers who could draw on past knowledge, information, scientific literature and expertise in the area to make a judgment about whether or not what happened was reasonable or unreasonable under the circumstances. You might also have as part of the system a certain class of events for which everybody knows that, if these things happened, something went wrong and that patient should be compensated quickly.

NU: It could be done a number of ways. In a special medical court the judges could be elected or appointed as they are in the state. That kind of detail is something that has to be worked out with all the stakeholders in health care. One of the things that Common Good is doing is coalition-building so that we’re not trying to pretend that we are the experts who have the answers to every single one of these details. We imagine panels having people with both legal and medical backgrounds, with impeccable credentials, and who can be trusted to act in the best interest of all parties in a fair and impartial manner. It can’t be seen as biased or partisan. You wouldn’t want to have all doctors. You might want to have some lawyers and some patient advocates.

NU: Some variation of it has been tried. Both Florida and Virginia in the 1970s and early 1980s enacted legislation called the Birth-related Injury Act, which was intended to take cases of children with severe neurological birth-related injuries out of the tort system and put them into an alternative system that would compensate them based on injury and evidence of malpractice. Those systems have worked to the extent that people have used them, but they have also devolved into end-run litigation over the definitional issues by people who don’t want to be in the system and who want to sue in regular court. You end up with the costs of the new system and all the detriments of the old. This entirely new system of medical justice has to be a replacement, not an addition. There are going to have to be demonstration projects where we could try out these alternative models that many people have been talking about for many years and use the data to perfect the model.

NU: Caps are important because they are deliberate judgments about the amount of compensation which you have to have, but caps don’t do anything to fix the rest of the problems with the unreliable system. They just treat one symptom, which is huge awards for pain and suffering. Limits on attorney contingency fees will limit plaintiffs’ access to the system that we already know is broken. It won’t do anything to make the system more reliable. You could try to come up with a funding source for medical liability premiums and give doctors some short term relief, but all you’re really doing is providing an alternative source of funding for these verdicts that are nonsensical and you’re not doing anything to reform the fundamental problems of the system. The problem we see with arbitration and mediation is that it doesn’t have the ability to set standards and create a body of law that people can rely on going forward. It just resolves the individual dispute before the arbitrator and those decisions don’t have impact on other cases. An early offer system is a great idea to encourage more cases to settle early, but we don’t think that the early offer proposal alone solves many of the liability problems in the current system, but it can lead to more settlements, and getting more compensation to patients faster is always good. Finally, the system we’re proposing probably would include some category of avoidable classes of events that should be compensated right away. On the other hand, we don’t think that’s enough because you also have to have expert decision-makers who can look at other situations where it’s not clear whether or not an error has occurred. Somebody has to make a judgement about whether what the physician did, under the circumstances, was reasonable.

NU: When I spoke at the Pennsylvania Medical Society recently, they had handed out a sheet to participants that had two titles: "What we need right now," which had to do with caps and some of the more typical reforms, and "What we need very soon," which was very similar to things that we’re talking about. We’ve been talking to people in Pennsylvania and many of the doctors are actually very interested. What we’re proposing is not an immediate fix. Doctors are feeling really pinched now and I understand they’re anxious to have immediate relief, but there isn’t anything out there that’s going to give immediate relief.

NU: We’re working on the outline of an actual proposal and hope to build consensus among bona fide consumer advocates and patient safety groups like the National Committee for Quality Assurance. We want to find sponsors and find out who is interested in doing demonstration projects.