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Panel of experts say health courts could solve medical malpractice

The Progressive Policy Institute, a centrist Democratic think tank, hosted a panel of experts on Capitol Hill this week to discuss how health courts could benefit doctors, lawyers and patients injured in medical malpractice cases. The institute's president, Will Marshall, called the current litigation system “broken” and that under the current system and some reform proposals patients are offered “false choices between phony solutions.”

As expected in the medical malpractice debate, the proposal has been met with resistance. According to Joanne Doroshow, executive director of the Center for Justice & Democracy in New York City, the proposals are presented as beneficial for medical malpractice patients when they would actually be devastating – especially to the most severely injured.

Doroshow believes the proposal for health courts is “yet another attempt by the healthcare industry to limit its liability exposure by proposing to take compensation judgments away from juries, and replacing the jury system with a statutory structure over which their political action committee money can have more control.” The way the health courts would operate, under the proposal, it to establish a system that would function similarly to patent and bankruptcy courts by eliminating juries and maintaining judges with specialized experience.

A patient alleging medical malpractice would file claims with a local review board, which would be set up by a hospital and operated under the jurisdiction of a health court judge. After being investigated, free of charge to the patient, one of three rulings would be issued; immediate compensation to the patient in cases involving clear evidence of medical malpractice, rejection of the case if no medical malpractice is found or the injury is too minor to justify compensation or the case is sent to the health court judge for review or trial if the circumstances of the injury are not clear.

Judges, not juries, would decide the cases – a major point of contention among lawyers. A lawyer would represent both sides, and the health courts would employ the judges, who would be trained to understand the healthcare system. Neutral experts would also be hired to review claims.

The director of media relations at the Association of Trial Lawyers of America, Carlton Carl, said the concept behind health courts could be considered unconstitutional. According to Carl, if a jury made up of ordinary men and women are able to decide Enron is guilty of corruption, with no expertise of corruption, they should also be able to decide after hearing evidence whether a doctor has committed medical malpractice.

Marshall maintains the issue of medical malpractice is more complicated than choosing a side, and that one of the problems with the medical malpractice debate is that it is occurring along political lines, with Republicans arguing in favor of non-economic caps and Democrats attempting to protect lawyers. The panel of experts said the addition of health courts, along with non-economic judgment caps and tighter regulation of the insurance industry might be the way to effectively solve the problem of medical malpractice litigation reform.

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