By Wagner, Cynthia G.
The Futurist , Vol. 40, No. 6
Medical Law--Interpretation and Construction
Health Care Industry--Services
Health Care Industry--Management
Health Care Industry--Cases
Medical Care--United States
The case for specialized health courts is receiving new support in the United States as an innovative solution for increasingly complex medical liability lawsuits and other health-related cases. Such courts could reduce the soaring costs of health care by lowering malpractice insurance costs.
Doctors and lawyers are rarely cross-trained in each other's professions, posing a problem when crucial decisions need to be made that are beyond one's specialty. Fear of litigation may prompt physicians to order excessive precautionary tests and procedures, while judges with no medical training must weigh the testimonies of competing experts.
Many health-care organizations, including AARP, are calling for test projects for health courts, according to Common Good, a bipartisan legal-reform coalition. In addition, six hospitals and academic medical centers, such as those at Duke University and Johns Hopkins, are considering serving as pilot health courts.
Presiding over health courts would be full-time judges who are trained in health-care issues and who would define standards of care in malpractice cases. According to Common Good, these courts would also ensure that those patients who are injured by medical mistakes would be reliably compensated--and not have to pay a third or more of their recovered damages to their lawyers.
"Special health courts are intended not simply to provide a better dispute-resolution mechanism, but also to provide a foundation from which deliberate choices can be made to restore order to American health care," Common Good chair Philip K. Howard told the U.S. Senate Health, Education, Labor, and Pensions Committee in June 2006.
The ad hoc nature of medical disputes "decided jury by jury" has led to distrust among the public and fear among medical professionals, according to Howard. "Special health courts, by contrast, can offer guidance on standards of care and the predictability needed for trust."
From the admiralty courts of colonial times to today's drug courts, specialization is a longstanding practice in many judicial systems. Mental Health Courts, for example, create individualized, long-term treatment programs for people who might otherwise be sent to prison. The courts address both the health needs of the offenders and the public-safety needs of communities.
Other courts with specialized jurisdictions include youth or teen courts, domestic violence courts, community courts, and truancy courts. But a specialty court such as the proposed Health Courts would differ by encouraging innovative court practices, such as high levels of judicial monitoring and cross-agency collaboration. In this way, specialty courts serve more as "problem-solving" courts. In Minnesota alone, the number of specialty courts grew from just two in 2002 to 28 at the end of 2006.
Special Health Courts are needed because no other issue handled by the courts is "as complex as modern health care, and none is more important to our society," Howard told the Senate committee. …