Wednesday, February 25, 2015

Role of Judiciary in Health Policy

It will not be incorrect to say that in the current environment, successful litigation can have regressive effects and negative impacts on the health care system. It is true that a single court case decision may not affect the whole system but cumulative effects of the court rulings hold significant importance not just in the eyes of the parties involved but also policy makers and governments. 

The courts are not suited to address healthcare decisions such as: Non-compete laws 1, Mergers and Acquisitions 2, ERISA violations by Managed care organizations (MCO) 3, and Medical Malpractice 4, except in the case of res ipsa loquitur (Mello et al.), for numerous reasons. First and foremost, judges are not equipped with detailed knowledge of Medicine or Health policy. The argument that, proper role of a judge in a constitutional republic is a modest one, but does not work when judges are made responsible for making important policy related decisions. It is true that the judicial system requires the disputes to be judged based on what the law says and according to its original public meaning rather than the personal discretion of judges. Judges acting in accordance with their constitutional duties will at times uphold laws that may be bad policy and strike down laws that may be good policy. Judicial review requires the judge to determine not whether the law leads to good or bad results, but whether the law violates the Constitution.

Secondly, the system does not make use of the precedents, nor there exists a way for them to do so. There is a necessity for a national centralized adverse event database, which can serve as an information resource for the judiciary, healthcare providers, and researchers.4 In the absence of such a system it is no surprise that different courts give varyingly different verdicts for a similar cases.

Third problem is that of scope; the judicial system only looks at one case at a time and therefore precludes the big picture. The driving force in health policy is how to allocate finite resources is to serve society at large, problem of “containing aggregate” while maintaining quality of care. By contrast courts are traditionally concerned with protecting individual liberties and rights, with the legal system designed to protect individual litigants.

The fourth problem is that of perspective. In the research undertaken by Jacobson et al., researchers found that in 33 % of the cases sampled, the court gave great weight to a policy issue6. It suggests that the judiciary is well aware of the policy conflicts at stake and is willing to consider them. Their study also found that when courts rely on “justice/fairness”, plaintiff won 74 % of the time, but only a 28 % when “economy/cost efficiency” controlled the argument. Perspective is important in any argument, but how does the judiciary decide whose perceptive to adopt when making decisions. Currently it is, at best, random. The Aetna Health Vs. Davila case in supreme court’s decision on challenging ERISA plan coverage , made the author, Timothy Jost,  to conclude that: if anyone is going to permit tort actions to be brought against MCOs, it will have to be congress. 3

It is clear that the courts are not equipped to handle cases that may negatively impact the policy at large, health court can be a feasible alternative, where we can look to other countries like Sweden4. Swewden has developed a system of parallel damage redress system of Health Courts and a robust centralized database of cases. Health Courts are important also because patient protection and safety is a much larger and important debate to be left to courts. The compensation would be faster and more reliable. Study of the precedents, undertaken by these Health Courts, will remove the uncertainty and variability in court decisions. They will also serve a broader range of patients than the tort system which inadvertently makes the patients qualify to fight a case only if the damage was serious and big enough to expect large compensation. In this system, smaller injuries may never qualify. Lastly, these Health Courts will provide a greater opportunity for cost control on both sides of the table.

The current perspective adopted to assess right to health litigation is not without valid criticism. Other consequences can and should be considered in analyzing the overall impact of litigation in Health care, especially when it may have long term implications. Governmental agencies must seriously look into the feasibility of Health Courts. Not before it answers questions like: will Health Courts, with their opt-out system, take away the autonomy of the patient, and,  more importantly, are they feasible in a pluralistic republic like United States?

1) Elizabeth Gray, Check your non-compete agreements in light of Kentucky Supreme Court decision,  Louisville Business First, June, 27, 2014 
2) Gerard Anderson (1992), The courts and Health Policy: Strengths and Limitations,
Health Affairs Winter 1992
3) Jost, T. S. (2004). The Supreme Court limits lawsuits against managed care organizations,
Health Affairs, Web Exclusive, August, 11, 04-14.
4) Mello, M. M., Studdert, D. M., Kachalia, A. B., & Brennan, T. A. (2006),
“Health courts” and accountability for patient safety. Milbank Quarterly, 84(3), 459-492.
5) Andrew Kloster, John Malcolm, Elizabeth Slattery, Role of Courts, Solutions, 2014
Retrieved from:
6) Jacobson, P. D., Selvin, E., & Pomfret, S. D. (2001). The role of the courts in shaping
health policy: An empirical analysis. The Journal of Law, Medicine & Ethics, 29(3‐4), 278-289.

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