Friday, April 18, 2008

Health Courts?

One reform of the civil justice system that's been proposed is taking medical malpractice cases away from courts of general jurisdiction -- and ordinary juries -- and instead having them tried by administrative courts that would specialize in health issues. Philip G. Peters, Jr. says: not so fast. Here's the abstract of his article, Health courts?, 88 B.U. L. Rev. 227 (2008):

This Article provides the first detailed critique of the Common Good/Harvard School of Public Health proposal to replace medical malpractice jury trials with adjudication before specialized health courts. I conclude that the modest benefits likely to be produced by the current health court proposal are more than matched by the risks of bias and overreaching that these courts would also present.

Missing from the plan is the doctrinal change most likely to improve patient safety – hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a result, simply does not offer patients a sufficient quid pro quo to justify their loss of the right to a trial before a jury of their peers.
Common Good's page on health courts is here. It summarizes the case for health courts like this:
Why Does America Need Health Courts?
  • The current medical liability system fails both patients and providers.
  • Patients lose because few patients are compensated and those that do generally endure years of litigation.
  • Physicians and other healthcare providers lose because they receive mixed signals on the appropriate standard of care, encouraging defensive medicine and adding to healthcare costs.
  • Society loses because patient safety efforts, which require candor about mistakes and near misses, are stymied by legal fear.

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