Injuries and deaths from medical malpractice increase every year at alarming rates. The Institute of Medicine of the National Academies estimates roughly 1.5 million people are injured from medication errors alone every year. Patient care advocates say switching to “health courts” will help provide more efficient and less expensive justice for individuals injured from medical negligence. Others argue that creating health courts to adjudicate claims instead of civil courts is a disastrous proposal.
Congress has supported the creation of specialized health courts at several points throughout the past decade.
Five years ago, Rep. William Thornberry (R-TX), generated support for health courts when he sponsored the Medical Liability Procedural Reform Act of 2005. The bill proposed creating health courts to arbitrate cases where trained judges with expertise in health care would preside. Similar to workers’ compensation or patent cases heard by special courts today, the bill planned to create a specialized court to hear medical malpractice claims. But the law failed to gain further momentum and was never passed.
In the five years since Thornberry sponsored the Act, bi-partisan support for health courts has steadily increased.
Advocates of health courts argue that assigning judges with specialized knowledge in health law would eliminate the confusion and difficulty jurors experience when handling medical malpractice and other complex cases.
Health care advocates also argue that special courts are nothing new in American law. Special courts were created for workers’ compensation and patent cases because of their complex nature. And mental health courts were established to provide better responsiveness and efficiency to individuals with mental illness.
Opponents of health courts argue that adjudicating medical negligence claims in state-run administrative tribunals instead of civil courts would be a disaster. Far from offering efficient and inexpensive justice to victims and their families, opponents claim that shifting adjudication to administrative tribunals would take away several benefits civil courts provide plaintiffs. Not only would the new health courts eliminate a plaintiff’s seventh amendment right to a trial by jury, but the tribunals would remove discovery and cross examination procedures in place today in civil court that correct imbalances and ensure certain protections.
Opponents also argue that civil court verdicts and judgments are public record and switching adjudication from a public arena to an administrative court would eliminate transparency. They argue that health courts will only provide a forum for hospitals and doctors to suppress information for years about dangerous or harmful practices uncovered during trial.
In the 1970s The New England Journal of medicine claimed that “replacing the tort system in medical malpractice cases might well abolish the deterrent signal or distort clinical decision-making.”
Former judge Harry Edward of the D.C. Circuit Court of Appeals once noted, “inexpensive expeditious and informal adjudication is not always synonymous with fair and just adjudication. The health care proposal currently being pushed by tort reformers shows little concern for what is best for patients, especially the most severely injured patients.”
As of today, no pending legislation establishing health courts is on the horizon; however, enthusiasm and support for health courts is likely to continue.