NCPA - National Center for Policy Analysis


February 28, 2006

Recently, over the objections of its own Health Law Committee, the American Bar Association's House of Delegates opposed pilot projects for special health courts, says Philip K. Howard, Founder and Chairman of Common Good, a legal reform group. These courts would offer an alternative to litigation in regular courts for medical malpractice cases and related disputes.

  • America has a long tradition of specialized courts for areas needing special expertise, including admiralty courts, bankruptcy courts and workers compensation systems.
  • Health courts, a concept developed by a joint venture of Common Good and the Harvard School of Public Health, would have judges focused on health care, neutral experts, incentives for prompt compensation, and written opinions to offer guidance on good practices.
  • As with other administrative courts, health courts would have no juries.

According to studies by the Institute of Medicine and others, nearly universal distrust of American justice is causing the health care system to suffer a kind of nervous breakdown:

  • Doctors squander tens of billions of dollars in unnecessary "defensive medicine."
  • Professional interaction is chilled by legal fears, leading to tragic errors.
  • And getting rid of inept doctors is, literally, a trial -- they invariably hire a lawyer and threaten to sue.

Large consumer groups such as AARP and leading patient advocates are supporting health court pilot projects, says Howard, noting that more money in the current malpractice system goes to lawyers than to injured patients.

Source: Philip K. Howard, "Letter to the Editor: Juryless Health Courts Could Stabilize 'Crisis,'" Wall Street Journal, February 28, 2006.

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