Restoring Trust to the Medical Justice System
Should Health Courts Replace Civil Trials for "Med Mal" Cases?
Jun 3, 2009
Physicians, medical researchers and legislators have expressed increasing concern in recent years about whether the civil justice system is still the proper forum for trying medical malpractice cases. Many have expressed increased interest in specialized tribunals called health courts, which would replace the civil tort system for resolving medical liability cases.
The Seventh Amendment to the U.S. constitution provides: “In suits at common law...the right of trial by jury will be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, then according to the rules of the common law.” Nearly all states have similar constitutional provisions.
Are Jury Trials Necessary?
The importance of juries to a democratic form of government prompted the great English statesman William Ewart Gladstone to call the jury “the glory of English common law.” The U.S. Supreme Court has stated that “[m]aintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.” (Dimick v. Schiedt, 293 U.S. 474, 486 (1935)).
In the current system, injured patients usually do not know if they are victims of bad care or bad luck. And most patients receive no compensation at all for injuries from medical negligence. Studies in several states show that only 2 percent of patients injured by negligent care in a hospital even file a malpractice claim. Elderly or low-income patients are the least likely to sue. And only about one-third of malpractice claims produce a payment through a settlement or trial.
A primary goal of health courts is to increase patient safety by promoting openness about disclosure of medical errors. In a health court, specially trained judges would hear and decide cases and there would be no juries. Independent expert witnesses would be hired by the court (not by the parties to the case) to help explain technically or medically complex information. Patients would be compensated based on a “schedule” or pre-determined list of damages, especially for noneconomic losses.
Legal experts see health courts as a necessary change because they believe that the current civil tort system has become too expensive, time-consuming and unpredictable. In an April 2, 2009 New York Times op-ed piece, Philip K. Howard, chairman of Common Good, a not-for-profit organization, wrote that the health court idea is gaining credibility among health care institutions and in Congress for practical reasons:
“Restoring a foundation of trust requires a new system of medical justice. Medical cases are now decided jury by jury, without consistent application of medical standards. ...“America needs special health courts aimed not at stopping lawsuits but at delivering fair and reliable decisions. A special court would provide expedited proceedings with knowledgeable staff that would work to settle claims quickly. Trials would be conducted before a judge who is advised by a neutral expert, with written rulings on standards of care. ...”
The U.S. Supreme Court Will Decide
The plaintiffs' bar has lobbied vigorously against health courts for several years through state and national bar associations and politicians who support the status quo. Civil practice attorneys believe that it would be undemocratic, possibly unconstitutional to deny plaintiffs their day in court as guaranteed under the Seventh Amendment.
“The constitutionality of health courts is highly questionable,” begins a section of a report that the American Association for Justice uses as a lobbying document. “Health courts violate the right to trial, and, if enacted by Congress, the Seventh Amendment. Health courts deny patients their constitutional rights to open access to courts and to a remedy for their injuries... .Health courts may deny patients equal protection and due process of law.”
However, the concept of using single-issue, non-jury administrative courts to resolve cases is well-established. Separate courts already exist at the federal level for tax, bankruptcy, workers’ compensation and vaccine liability. However, it may be faster and easier to establish health courts at the state level first because there are unresolved issues about whether federal health courts would be constitutional.
Common Good began its State Action Project in Colorado, Maryland, Massachusetts, New York, Pennsylvania, and Wyoming. There are significant numbers of stakeholders in each state who would like to develop a proposal for establishing a health court or administrative compensation system. In addition, interest groups, legislators, and thought leaders in these states are working with Common Good and its partners.
As to whether health courts are constitutional, the answer awaits their establishment at the state or federal level. However, should the proponents of health courts succeed in convincing Congress to approve a test program that tries actual cases, the issue will probably find its way to the U.S. Supreme Court before long.
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