“We’re excited about it,” says James B. Battles, who oversees this grant for AHRQ. “It uses the existing court system and didn’t require any special legislation. That has some real advantages.” So far, some 200 cases have begun the process, though not all have completed it.
Providers, patients and policymakers generally agree that the current medical liability system doesn’t serve anyone very well. A number of remedies have been tried, including caps on damage awards and programs that encourage providers to admit errors early and offer compensation to patients.
The designated jurist
At its core, the New York program, called judge-directed negotiation, is simple: When a medical malpractice lawsuit is filed, a judge with expertise in medical matters becomes the point person for that case. He or she supervises the entire process and brings the parties together as often as necessary to discuss the case and help broker a settlement.
This is very different from what typically happens now: The pre-trial discovery phase, in which depositions are taken and other evidence is gathered, sometimes drags on for months or even years. A number of judges may be involved over that period, and with no one person pushing the parties toward resolution, serious settlement discussions generally don’t happen until late in the process, often after a court date has been set.
A judge overseeing the entire case can make sure the parties don’t dawdle over such things as procedural meetings to set up discovery dates. From the beginning, that designated jurist can delve into the case with an eye toward settlement, says Judge Douglas E. McKeon, an administrative judge in the Supreme Court of Bronx County, who pioneered this approach in 2002. He discovered that “if you created a process that people knew had the potential to get a case settled sooner rather than later for significant sums of money, they came in and they were ready to talk,” he says.
The program started with an agreement between McKeon and the New York City Health and Hospitals Corp., which operates 11 public hospitals, to try to identify cases that were good candidates for prompt settlement and funnel them to the judge. The AHRQ grant has enabled the program to expand to more city hospitals and judges. A similar program is just getting underway in Buffalo.
The judge facilitates negotiations but doesn’t impose a settlement amount. If the parties can’t agree on a figure, nothing would prohibit the plaintiff from moving ahead with a lawsuit through the court system.
A typical medical malpractice case takes three years from the date a claim is filed until the case is closed, says Michelle M. Mello, a professor of law and public health at Harvard’s School of Public Health. The typical time frame for settling one of McKeon’s cases? Six to nine months.