Pioneering Ideas

CBS Sunday Morning to Feature Common Good, Health Courts

This weekend, tune in to CBS Sunday Morning for its lead story on Common Good, which, together with researchers at the Harvard School of Public Health, has been analyzing and testing the viability of a system of administrative health courts to more rationally handle medical injury claims.  The CBS piece will look broadly at legal fear in America, a key thread in Common Good Chair and Founder Philip Howard's new book, Life Without Lawyers.  Interviews touched on health courts and their potential to reduce errors, boost patient safety and improve the overall quality of care, in addition to producing a more functional and effective process for resolving medical liability disputes.  Click here to find out where and when to watch in your area.

Vote Now: Two Pioneer Reports In the Running for RWJF's Top Research of 2008

Every year, David Colby, RWJF's vice president for research and evaluation, showcases 10 RWJF-supported research projects that have contributed to greater understanding of an issue or can help inform policy discussions.

This year, he's doing things a little bit differently. He's opened up a poll on RWJF.org so people can cast their votes for the most influential RWJF-supported research of 2008.

We're pleased he's included two papers supported by the Pioneer Portfolio among his 25 finalists:

The Collective Dynamics of Smoking in a Large Social Network
Using data from the Framingham Heart Study, Nicholas Christakis and his colleagues reconstructed the social networks of more than 12,000 individuals and found that smoking cessation occurs in network clusters. The study, published in The New England Journal of Medicine, also concludes that the chances of continuing to smoke decrease significantly for an individual when a spouse, friend or even sibling quits smoking.

In a blog post, "The promise of social network analysis," Lori Melichar wrote about this study and the potential for social network analysis:

Christakis’ research findings have the potential to drive a fundamental rethinking of health policy, clinical care, research and evaluation, and public health campaigns. If social network analysis continues to produce promising new results and becomes widely used – and if it helps us to think differently about how we design health interventions and health campaigns that ultimately achieve greater success – then we will have achieved a key breakthrough in the health and health care of all Americans. 

Most recently, Christakis and his colleagues published a study in BMJ about the social spread of happiness, which Susan Promislo blogs about here.

Administrative Compensation of Medical Injuries: A Hardy Perennial Blooms Again
In this article, published in Journal of Health Politics, Policy and Law, a team from Common Good and Harvard School of Public Health looks at the history of administrative compensation proposals over the last 30 years and examines the success of the administrative compensation model in fields like worker's compensation, vaccine injuries and automobile injuries. The authors conclude that establishing pilot projects, particularly through a voluntary or contractual approach, is likely the most practical way to realize the potential of this model for medical injuries.

Abbey Cofksy wrote a blog post about the latest work from this project in October:

Common Good and their collaborators at the Harvard School of Public Health continue to build the research base and policy consensus for a new system of specialized administrative health courts. An innovative alternative to our nation's current medical liability system, health courts would apply rational, consistent standards to resolving medical liability claims and compensating injury patients.

To vote for the top 10 RWJF-supported studies, visit the RWJF Year in Research 2008 poll. Voting is open until December 23.

RWJF will announce the winners in the new year through an RWJF Content Alert. To receive notification of the winners, subscribe to one or more of RWJF's Content Alerts.

(And to see what's been highlighted in the past, read the 2007 Year in Research here, which featured the work of Pioneer grantee Extending the Cure).

Health Courts: New Articles, Upcoming Event

Common Good and their collaborators at the Harvard School of Public Health continue to build the research base and policy consensus for a new system of specialized administrative health courts. An innovative alternative to our nation's current medical liability system, health courts would apply rational, consistent standards to resolving medical liability claims and compensating injury patients. Their efforts are reflected in three recently published articles -- two in the Journal of Health Politics, Policy and Law and one in Wyoming Law Review.

"Administrative Compensation of Medical Injuries" looks at the history of administrative compensation proposals over the last 30 years and examines the success of the administrative compensation model in fields like worker's compensation, vaccine injuries and automobile injuries. The authors conclude that establishing pilot projects, particularly through a voluntary or contractual approach, is likely the most practical way to realize the potential of this model for medical injuries.

"Administrative 'Health Courts' for Medical Injury Claims: The Federal Constitutional Issues" explores the potential of establishing a federal health court system in the United States that would transfer medical liability claims from traditional judge and jury trials in state courts to an administrative compensation system.  The authors discuss the legal challenges that might arise by moving to a federal health court system and conclude that with a properly drafted statute, the move to health courts would be constitutional, assuming there are demonstrated benefits with such an alternative system.

Recognizing work going on in individual states around patient safety and administrative compensation models, "Error Reporting and Injury Compensation: Advancing Patient Safety Through a State Patient Safety Organization" gives an overview of state-level initiatives to improve patient safety that rely on voluntary reporting of medical errors.

Common Good is also getting ready for a national forum on November 18, 2008 in Washington, D.C. The event will focus on the evolving health courts proposal and new patient safety-focused alternatives to the medical liability system. Visit Common Good's web site for more information and to RSVP for the event.

Michelle Mello podcasts on health courts

Pioneer grantee Michelle Mello of the Harvard School of Public Health is helping to inaugurate the school's new multimedia page with a podcast on health courts.  You can find a link to the podcast here.

Discussing Health Courts in Wyoming

Earlier this month, Common Good and the Wyoming Health Care Commission co-hosted a public event on legal options to improve patient safety and reduce medical errors. The presentations are available on the Wyoming Health Care Commission's site and the Wyoming Business Report also covered the event.

While the links above convey content, I'd like to add a few comments about context and observations. 

• I think it's pretty cool that Wyoming is among the first states to engage in in this discussion on how medical liability reform can go beyond caps on damages to address larger issues, like system inefficiencies, patient safety, and inconsistencies in patient compensation (note: this sentence revised for clarification on 10/31/07).  As it stands now, there are plenty of complexities from the patient, provider, and legal advisor's perspectives, but the intent is to make the system more transparent and safer.  Kudos to the folks on the Health Care Commission and others who are willing to parse this out. 
• The first thing that struck me about being at this event in Wyoming was the landscape of the state, literally.  Whether you're flying or driving to Wyoming, you notice is that it's a rural place.  There are lots of wide open spaces.  Wide open.  Many readers may know that New Jersey (where RWJF is) has the highest population density of any US state at 1,138 people per square mile.  Wyoming has about 5 people per square mile.  The only state with a lower population density is Alaska.  I bring this up because the discussion about medical liability reform is often considered as a system-wide change, a system that can span across towns, a state, or even many states.  In Wyoming, the system has components in very remote areas.  Technology can erase some of the miles, but it can't make up all the resources, including specialty care, supportive care, or administrative staff. I like thinking about the components of implementation, but it makes my head spin to consider some of the logistical challenges of implementing health courts on the ground in Wyoming.  As other states travel down the path of medical liability reform, I'm interested to see how geography and density factor in to implementation.
• A recurrent theme in medical liability reform is transparency.  While you can make a system more transparent by making it simpler, the Tennenbaum Institute would argue that a system SHOULD be more complex.  Wouldn't it be fun and informative to test out the proposed system changes (for more and less complexity) on the Health Advisor?

Health Courts Series an "Editor's Pick" in Grand Rounds

Grand Rounds describes itself as the "weekly rotating carnival of the best of the medical blogosphere." Its Memorial Day edition includes our series on health courts as an Editor's Pick.  Our thanks to this week's host, the blog From Medskool.

As always, Grand Rounds is a fascinating compendium of medicine-related blogging.  We hope you can drop by.

The Potential Effect of Health Courts: Another Insight

The Washington Post reported recently on a study published this month in the Michigan Law Review by University of Missouri law professor Philip G. Peters, Jr., on who fares better in jury trials for malpractice lawsuits: defendants or plaintiffs. Evidently, defendant doctors do: the Post says Peters found that "Doctors win about half of the cases that independent experts who review them believe should result in a plaintiff's victory."

The Post goes on to comment

"One proposed solution -- to turn cases over to specialized health courts -- might result in less-favorable results for physicians, he (Peters) suggests. Studies have consistently found that malpractice plaintiffs fared better in front of judges than in front of juries."

The blog Kevin, MD has been hosting quite a discussion on Peters' findings, including comments on the likely implications of and for the health courts model.

Health Wonk Review Highlights Health Courts Series

Health Wonk Review is a biweekly compendium of the best health policy writing in blogs.  The most recent edition praises Pioneering Ideas' series on health courts.  Our thanks to the Review's host, Robert Laszewski, of the blog Health Care Policy and Marketplace Review. 

Lots of other interesting posts described in the Review as well.  We urge you to visit.

But Is There Support?

previous post

Paul Barringer answers this critical question:

Yes. Momentum for health courts continues to build with the growing awareness of the failings of the current medical liability system. This month, U.S. Senate Senators Michael Enzi (R-WY) and Max Baucus (D-MT) are expected to introduce a bill to encourage the states to experiment with alternatives to the present system. Bills to create health courts or administrative compensation systems have been introduced on a state level this session in about a half-dozen states.

At Common Good, we’ve done a lot to reach out to stakeholders around the country with information about the evolving health court proposal. We’ve also solicited input about the best ways in which the health court proposal might be translated into specific policy initiatives – and we’ve heard a lot of advice. These insights have been very helpful as the model has evolved.

And as a result, dozens of major organizations have expressed support for the health court proposal and the idea of trying pilot projects, including health care providers, consumer organizations, quality/credentialing organizations, and others. And, increasingly, political leaders have been responsive to this interest, both at the national and state levels.

These state-level proposals may vary by structure and features, but they all share this in common: in incorporating multiple elements of the health court proposal, they offer potential to improve the functioning of the medical liability system both for patients and for health care providers. Ultimately, one or more states will need to step up to the plate and establish a demonstration project, if the health court proposal is to have real-world testing. Nothing’s certain, of course, but we’re sanguine about the prospects.

We’re honored by and grateful for the support of the Robert Wood Johnson Foundation in the work we’re doing to advance the health court proposal. We’re also privileged to have the opportunity to work with leading academic researchers like Michelle Mello and David Studdert at the Harvard School of Public Health—and with many committed and incredibly capable leaders at the state level. To the readers of the blog: we hope that this is of interest to you, and that you will work with us as well.  Thanks for reading!

Health Courts and Root-Cause Analysis

previous post

Mello and Studdert describe the relationship of the health courts system to hospital-based improvement.

We have also thought about how a health court system could spur hospitals to conduct more root-cause analysis of their own adverse events. Although hospitals are in perhaps the best position of anyone to investigate what happened when an unexpected outcome occurs, this is not always done. We designed the health court model to put the initial onus on the involved hospital and its insurer to conduct an investigation.

When a patient files a claim, the hospital must conduct an investigation and determine whether it believes the injury was avoidable. If so, it must make an offer of compensation. This is not a neutral adjudication, but, as with settlement negotiations in the shadow of a lawsuit, the goal is to encourage early offers of compensation as well as reflection within the hospital about what happened and, if the event was avoidable, how similar injuries could be avoided in the future. (The health court, which would play the role of neutral adjudicator, would become involved in all claims that were not resolved to the satisfaction of both parties through this investigation-and-offer process). Health court oversight would ensure that appropriate investigations were conducted in every case and that offers were made in good faith.

In summary, a health court system could also provide new and important structural mechanisms for collecting, analyzing, and disseminating information about medical injuries and how to prevent them. Additionally, by jettisoning the negligence standard and its punitive connotations, a health court would contribute significantly to building a productive “culture of safety” within health care institutions. Our research strongly suggests that this is a proposal worth testing.

Health Courts and Accountability for Patient Safety

previous post

Mello and Studdert discuss the potential gains from sharing patient claims information.

As medicolegal researchers, we are acutely aware of the value of malpractice claims as a source of data on why medical errors occur and how they can be prevented.  Unfortunately, in the U.S., claims data are extremely hard to get.  There is no centralized repository of detailed information about the facts underlying claims.  The information is held by hundreds of liability insurers—and held tightly.  But when the data have been shared with researchers, big gains in patient safety research have been made.

One attractive feature of the health courts model is the potential for routing medical injury claims through a centralized body and gathering and storing detailed information about what happened.  We envision that a division of the health court within the state government would be responsible for maintaining a database of claims information, conducting analyses (in cooperation with external researchers), and feeding the findings back to health care providers.  We saw this happening in each of the foreign compensation systems we visited.

In New Zealand, for example, a patient safety division of the compensation scheme analyzes each claim and assigns it a safety assessment score based on both the seriousness of the injury and the frequency with which that kind of injury is represented among claims.  High-scoring injuries are targeted for further research, with the goal being to identify common contributing factors which are then passed on to hospitals to help guide their injury prevention work.  Representatives of the compensation scheme issue safety alerts and visit hospitals to make presentations about important safety issues.  Individual hospitals can also request data on their claims in order to perform benchmarking against similar institutions.

In summary, foreign administrative compensations systems have recognized the value of their claims data as a tool for learning about patient safety improvement.

A health court in the U.S., too, could leverage claims information to learn about the circumstances that contribute to medical errors.  And this information could be used by hospitals as well, as we will discuss next.

Avoidability: Workable, but Negotiable?

previous post

Mello and Studdert expand on their discussion of the avoidability standard:

The avoidability standard has proved workable in practice, offers the prospect of compensation to a much broader group of injured patients, and yet does not force providers to bear the costs of injuries they could not have prevented.  Not only does the standard improve the compensation potential of the liability system, it also (in theory at least) sharpens the deterrent signal to providers by increasing the economic consequences of not taking steps to fix systems problems that lead to avoidable injuries.

One of the interesting political questions that has arisen in the course of our project is whether this change in the compensation standard should be treated as a negotiable item.  Some interest groups and policymakers like the idea of an administrative system, but would prefer to retain the negligence standard, usually because they’re afraid of the downside financial risk associated with broadening eligibility.  Political compromises may have to be made in order to get policy initiatives launched.

Our own view, however, is that expanding eligibility and getting rid of the stigmatizing effects of negligence judgments are key elements of what makes the health courts proposal attractive. Easing the barriers to recovering compensation may also be important in defending a health court system against constitutional challenges. When legal reforms limit claimants’ rights at common law (such as the right to a jury trial), courts will look at whether they provide offsetting benefits. Not having to prove negligence is a big one. There are others, as we will discuss in our next posts.

Liability Reform and Patient Safety

previous post

Paul Barringer continues:

The difference today ultimately boils down to two words:  patient safety.  True, the polarization of interest groups remains very strong today, as it has been in past medical liability crises.  However, the current pressures for medical liability reform are somewhat different than in past crises, due largely to the greater realization of the ways in which the medical liability system limits systemic efforts to enhance the safety of patients in health care treatment.

Since the beginnings of the current medical malpractice crisis in the late 1990s, the concepts of health care quality and patient safety have become increasingly important drivers of health policy.  Several Institute of Medicine reports have been particularly significant in stimulating political interest in health care quality, and have led to the development and introduction of numerous legislative initiatives to address these issues.

As interest in patient safety has increased, so too has the understanding of the connections between health quality and the medical liability system.  To better prevent medical errors, experts say, more information needs to be disclosed about errors and near-misses (those errors that do not result in any harm).   Only with such data can hospitals and providers analyze the patterns and frequencies of medical error and focus on fixing the system-wide breakdowns that lead to errors.  However, fear of litigation in the current system impedes the open exchange of information about errors and near misses.

Today, there is an appetite for innovative approaches to medical liability reform that can address the fundamental failings of the tort system, and particularly can dovetail with new and ongoing patient safety initiatives.  I’ll write more about this momentum, and where it may lead us, in my next post.

“Avoidability” as a Basis for Compensation Decisions

previous post

Harvard’s Mello and Studdert continue:

Our interest in health courts grew out of a growing body evidence pointing to a number of serious disadvantages with the negligence standard: doctors tend to disagree often about whether care meets the standard; many patients suffer injuries that are avoidable but do not qualify for compensation under negligence; and a negligence judgment is perceived as highly stigmatizing.

These effects limit the potential for the tort system to send strong signals about how health care providers should be practicing, limit the potential for injured patients to get compensated, discourage openness about medical errors, and foster adversarialism and distrust between physicians and patients.  We knew that several foreign systems of administrative compensation for medical injury use compensation standards other than negligence, and we were interested in finding out how workable these alternative standards were.

To explore this, we conducted sites visits in 2005 to the medical injury compensation schemes in Sweden, Denmark and New Zealand. Our aim was to understand why they chose the compensation standard they had, and how they went about making operational decisions based on it.

In the Nordic countries, the primary basis for compensation has long been “avoidability.” Patients are eligible for compensation if they experience injuries that could have been avoided under optimal circumstances.

New Zealand has recently expanded its compensation standard to cover all “treatment injuries”—injuries that are causally related to medical management, but not those that are a necessary part of treatment (e.g. the incision in a needed surgical procedure) or ordinary consequences of treatment (e.g. hair loss from chemotherapy).

Based on our interview study, we concluded that although the treatment injury standard was attractive because of its simplicity, there probably would be little political tolerance in the U.S. for the costs that would be associated with compensating all medical injuries regardless of whether they could have been prevented. Therefore, we ultimately selected the avoidability standard for the version of the health courts model we are developing. We’ll describe its feasibility more in our next post.

Health Courts May Provide an Answer

RWJF Senior Counsel Jim Ingram has co-authored this post with Nancy.

What if we could have a rational, consistent medical justice system that resolved claims expeditiously?  What if the bulk of the money spent on the system went to victims instead of to legal fees, court costs and other expenses?  Finally, what if this new system could actually promote patient safety by bringing the causes of medical injuries to light rather than pushing that information underground?

People on all sides of the medical liability debate see the system as broken and have strong opinions on various fixes, and yet for years we have been unable to break through the gridlock to make meaningful headway toward new solutions.

Pioneer, through a cluster of grants, is exploring a new approach — administrative health courts. Precedence for such a specialized administrative court already exists in the form of bankruptcy, tax and admiralty courts.

While health courts offer many advantages over the tort system, we find the potential for gains in patient safety, as well as in quality and transparency of care delivery, to be the most compelling.

• In a departure from today’s system, health courts would be overseen by judges dedicated full-time to addressing issues of medical injury.  They also would use court-appointed, neutral experts to testify on cases, and work from explicit compensation guidelines. Judges’ rulings would help set clear, consistent standards for future health care delivery, ultimately helping to improve care.
  
  
• Health courts would use “avoidability,” rather than “negligence,” as the criterion for determining whether a medical injury is compensable,  The concept of negligence brings with it professional shame and guilt – an unintended effect is that many physicians are reluctant to disclose information about medical errors or injuries to their patients and to reporting systems.  The use of “avoidability” reduces some of the stigma surrounding medical liability and could help promote a culture of safety and disclosure among physicians.
  
  
• The broader criterion of avoidability also means more victims of avoidable medical injury could receive compensation.  This alone is desirable and would also increase the availability of claims data for patient safety research.

The Need to Change, and an Alternative Approach

Paul Barringer, general counsel at Common Good, explains for us:

The Robert Wood Johnson Foundation is providing crucial support to Common Good and its research partners at the Harvard School of Public Health to create pilot projects for an administrative health court or other process for resolving injury disputes and compensating injury patients.

We know that the current system is highly inefficient (60 percent or more of total system costs pay for administrative costs), that it tends to foster a culture of blame (when most errors result from breakdowns in larger systems of care), that it compensates few injured patients (and those it does compensate generally wait for years), and that it does little to promote enhancements in patient safety (due to the strong disincentives it creates for providers to be candid about errors).

The promise of the health court/administrative compensation model is that it could address these failings. Evidence from other administrative systems clearly suggests that an administrative approach can increase the percentage of total system costs that reach patients, not experts and lawyers. An administrative approach offers potential to reduce the adversarialism that is so common in today’s system—and that is so toxic to the physician-patient relationship. A predictable and consistent administrative system could help to expedite compensation to deserving patients. And such an approach offers potential to improve patient safety as well, by helping to promote continuous learning about errors that have occurred in treatment – learning which will hopefully lessen the likelihood of such errors reoccurring in the future.

But how can this be done? After all, the idea of removing medical liability claims from the tort system has been around for several decades. In fact, one might observe that interest in exploring alternatives to the medical liability system has waxed and waned over the last 30 years along with the periods of crisis (and then periods of relative stability) in the liability insurance markets. In my next post, I’ll explain why things may be different now.

Making Health Courts Happen

Michelle Mello and David Studdert of the Harvard School of Public Health, describe their research:

The Harvard School of Public Health’s (HSPH’s) role in this project is to conduct research on several issues that have historically emerged as roadblocks to implementing policy experiments with administrative compensation systems. Among the hard questions that are being addressed are:

• The negligence standard may not be ideal as a basis for decisions about whether an injury should be compensated, but what’s the alternative? How do we know that some new standard, such as “avoidable” injury, would be workable?
• What would happen to the volume and costs of claims if we changed the system?
• How can we make sure that noneconomic damages awards are equitable and predictable?

Additionally, during the most recent malpractice crisis, there has been a great deal of interest in the connection between the medical liability system and prevention of medical errors. So, we have also been examining:

• What contributions could a health court system make to patient safety?

Our work is still in progress, but over the next few days we’ll share some of our findings to date on the issues of a new compensation standard and the nexus to patient safety.

next post

Reforming Medical Justice

Today in Pioneering Ideas we are pleased to begin three discussions of the need for, and value of, system change in the medical justice arena.

We start with RWJF Senior Program Officer and Pioneer team member Nancy Barrand and Senior Counsel Jim Ingram introducing the concept of administrative health courts and explaining why Pioneer is supporting the development and testing of this new model of medical justice.

Then, throughout this week, we will have a discussion of some of the specific components of administrative health courts and their implementation:

• Paul Barringer, general counsel for RWJF grantee Common Good, will explain the relationship among medical liability reform, health courts and increased patient safety, and
• Harvard School of Public Health researchers Michelle Mello and David Studdert will describe the research they led to guide the design and feasibility of the health courts model.

We welcome your review of this information, and your thoughtful comments.