NCPA - National Center for Policy Analysis


March 18, 2005

President Bush has cited medical liability as one of three parts of tort reform that he wants passed in his second term. But there's no guarantee it will withstand the assault from the plaintiffs bar, which counts Democrats as allies.

Consequently, the concept of special health courts administered at the state level needs to be considered, says Investor's Business Daily (IBD). It's possible they might work well to assign and punish fault -- which creates incentives to provide good care -- but also to suitably compensate the injured and get rid of outrageous jury awards:

  • Since the courts would still provide damages to real victims of medical malpractice, trial lawyers might not reject them.
  • After all, not every plaintiffs attorney is a predator; some want the truly harmed to be properly compensated and honestly feel that capping damages will in some cases prevent that.

According to the Progressive Policy Institute, the health courts, called medical tribunals by some, would have the following characteristics:

  • They would use specially qualified judges; their decisions would help mold clear legal standards that physicians would be expected to follow.
  • They would have no juries because jurors "have the impossible task of trying to discern legal standards when they should be deciding facts."
  • If they find malpractice, judges would determine awards based on a schedule of benefits.
  • The medical tribunals, not plaintiffs and defendants, would hire the expert witnesses; presumably, this would provide more independent and objective testimony.

These points show why health courts have won bipartisan support. If they're interested in a solution, policy-makers would be wise to at least look at this alternative to our broken system, says IBD.

Source: Editorial, "Caps Or Courts?" Investor's Business Daily, March 18, 2005.


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