The American Hospital Association has been shopping a new plan to lawmakers, trying to find alternatives to tort reform that prevents Americans from finding a remedy to medical malpractice in the courtroom.
A Health and Human Services hearing next week will seek funds for a pilot program. $25 million is to be set aside to find alternatives to malpractice litigation.
The latest plan takes cases of medical malpractice out of the courtroom and before a panel of experts, purportedly neutral, to sift through the facts of an alleged malpractice. The patient wouldn’t have to prove the negligence, only that the problem could have been avoided by following established guidelines.
It would then be up to the panel to offer compensation if the experts find a patient has been harmed by avoidable malpractice.
This idea is similar to the proposal of ”health courts” from the nonprofit group, Common Good, that advocates for changes in the legal system. Lawyer Philip Howard says that doctors would have an incentive to follow best practices guidelines, while doctors who do would be protected.
200,000 A Year
But the health panel plan does nothing to address injuries to patients, or discourage repeat offender doctors.
A recent Hearst newspaper investigative report finds nearly 200,000 Americans are killed every year from medical malpractice, either lack of treatment or medication errors, or hospital infections.
The victims of medical malpractice who receives an unfavorable dismissal from a panel, would have the option of appealing a decision to a higher-level panel, and ultimately a court, reports AP.
One problem - the Seventh Amendment guarantees Americans a right to a remedy through the court system.
Susan Steinman, policy director for the American Association for Justice says “We think that health courts take away the right to a jury trial.”
Hospital and doctor groups have long said that health care reform must include tort reform. While AAJ, which represents trial lawyers, has long advocated that health care reform must include insurance reform.
Doctors have long maintained that fear of being sued leads them to order additional and sometimes unneeded tests, while IB member Ben Glass suggests those doctors might be guilty of insurance fraud.
And a report on National Public Radio on health debate, takes another look at this polarizing argument. NPR finds that often it is the patient, who has done research on their condition or been influenced by direct-to-consumer advertising, that is demanding additional treatment or procedures and not defensive medicine.
Another alternative long sought by supporters of lawsuit reform, is slapping caps on jury awards in medical malpractice cases. But President Obama is not a supporter of hard limits on awards.
The Congressional Budget Office (CBO) recently concluded that curbing malpractice lawsuits would lower the federal deficit by $54 billion over the next decade.
The Center for Justice & Democracy, which advocates for protecting the civil justice system, finds that extreme tort reform measures would weaken the deterrent potential of the tort system. #