Commentary: Health Courts a Popular, But Politically Suspect, Proposal

Published June 1, 2007

The idea seems appealing at first glance for those interested in tort reform: Create a special “health court” to hear complicated medical malpractice cases. Take the tough cases away from potentially rogue juries in general civil courts, and hand them over to the medical experts, serving in a tribunal, who can make reasoned, rational decisions.

That approach, advocates say, will reduce dramatically excessive jury awards and save costs for health care providers. What’s more, they suggest, health courts will reduce the practice of “defensive medicine”–a habit many doctors have of running expensive and unnecessary tests in order to protect themselves from malpractice suits, which drives up costs.

American justice is no stranger to specialty courts, proponents argue. Just look at the U.S. Tax Court, or the U.S. Court of Federal Claims for the U.S. Court of Appeals for the Armed Forces. These specialized tribunals have been effective in their fields.

Pilot Programs

The health courts idea has been floated for several years. Now, some East Coast hospitals, including Johns Hopkins and New York Presbyterian, are interested in participating in pilot projects that would take them out of the conventional court system and place them in health courts–in which the experts, not juries, would rule.

Last year, a bipartisan bill was introduced in the U.S. Senate by Sens. Max Baucus (D-MT) and Mike Enzi (R-WY) to fund experimental health courts.

The bill did not make any headway last year, and, with the Democratic Congress now in power, its future is suspect.

Facing Resistance

The proposal sounds great in theory, and it often generates ideologically charged copy on the op-ed page of The Wall Street Journal. But measures that would establish specialty health courts don’t have any true momentum for passage. The goal of creating health courts suffers from a lack of consideration of the realpolitiks of the situation.

The American Bar Association–representing the nation’s trial lawyers–listed opposition to health courts as one of its top 2006 legislative priorities. “The ABA opposes the creation of a system that requires injured patients to utilize health courts which deny injured patients the right to a trial by jury or full compensation caused by medical negligence,” it states in a position paper.

The Alliance for Justice, a left-leaning advocacy group in Washington DC, also opposes the proposal and has produced a report countering claims of the value of health courts–going so far as to suggest the concept may be unconstitutional.

As a result of such opposition, passing a health courts measure is clearly not going to be easy at this time, despite several years of lobbying by the Common Good and Progressive Policy Institute (PPI). The Common Good is a tort reform group; PPI is the policy arm of the Democratic Leadership Council, the group within the Democratic Party that speaks Republican economic policy quite fluently.

Managing Risk

The common tactic for hospitals to avoid lawsuits is practicing what is called “defensive medicine.” According to a 2002 poll by Harris Interactive, 94 percent of U.S. doctors and 84 percent of administrators say unnecessary procedures are often performed in order to avoid a lawsuit.

A better solution may be to ally risk management with quality improvement efforts. At a group of four hospitals in Chicago, Philadelphia, Seattle, and Tulsa, administrators are doing this. By reducing the incidence of poor service, they have increased patient satisfaction.

Hospitals nationwide are concerned with quality efforts–but perhaps they have not linked the idea of managing risk with improving quality.

Research from the consulting firm McKinsey & Co. released in 2001 shows health care providers nationwide are struggling to deliver satisfying experiences to their patients. A recent study by McKinsey, published by the business school of the University of Michigan for the American Society for Quality, indicates patients are “increasingly dissatisfied” with the level of service provided by the health care industry.

Measuring Satisfaction

A study by Ascension Health–the largest Catholic health care provider in the country, made available to the author this year–indicates consumers rank hospitals just behind the Internal Revenue Service (IRS) and airlines in terms of customer satisfaction.

Contrast that with the level of customer satisfaction experienced by the Toyota Motor Corp., which reports about 85 to 90 percent of it customers are satisfied with their experiences with the company.

At some hospitals today, general health care satisfaction is measured quarterly by the research and development department. They use the Net Promoter Score (NPS), which is the number of customers likely to recommend a company’s service to another person. The metric was developed by Bain & Co.

At one Midwestern hospital–part of the four-hospital network mentioned above–in the latest quarterly patient satisfaction survey 91.2 percent said they would “definitely recommend” the hospital to another cancer patient. This represents very consistent performance for the hospital group–at the end of fiscal year 2006, 94 percent of its patients said they would “definitely recommend” it to another patient.

Perhaps if most hospitals would treat patients better than the IRS treats the average taxpayer, the public would hold them in higher regard. To paraphrase the famous Gospel passage of Luke 4:23, the best solution is, “Health care industry, heal thyself. Attend to your own problems, and correct them first.”

Satisfied customers rarely sue their health care providers, and they certainly don’t need a specialized health court to hear their complaints. They’re contented, not litigious.

Gene J. Koprowski ([email protected]) is co-author of the forthcoming Encyclopedia of Health Services Research (Sage Publishing, 2009) and a health care executive in Chicago.

For more information …

American Bar Association, 2006 Legislative Priorities, Tort Law: Health Courts,

“Health Courts Under the Microscope,” Alliance for Justice, March 2006,

“Fear of Litigation Study,” Common Good, April 11, 2002,

“Transforming U.S. Hospitals,” McKinsey Quarterly, 2001,