Specialty Courts for Medical Malpractice Legal Disputes

Today's Wall Street Journal publishes letters which comment on Philip K. Howard's proposal for demonstration projects on specialty courts for resolving medical malpractice legal disputes. The comments under the heading "Have the Guts to Reform the Health-Care Tort System" on p. A-16 (Oct. 9, 2009). The letters make various points, but really do not address issues in Mr. Howard's proposal.
Specialty courts or in this context health courts are to be designed to replace general courts with juries. The idea is that technical issues in many medical malpractice cases are beyond the capabilities of most juries and many generalist judges. The proposal would abolish juries and appoint judges who specialize in medical malpractice cases.
The proposal has many merits. First, a point which the letters to the editor do not mention, specialty courts address what is perceived to a be a fundamental problem of the current system. The vast majority of reforms enacted by the states are simply bandaids. Second, specialty courts have existed for other areas of the law, such as for tax, bankruptcy, family issues, drug and alcohol-related issues. These courts provide post-verdict coordination (e.g., with other government agencies) in ways that general courts do not. The track record of these courts is well worth reviewing.
However, abolishing juries for medical malpractice should not be done lightly. Juries bring a general citizen perspective to the courtroom which professionals may not have, given years spent in a professional role. There is empirical evidence on how well juries perform. This evidence is well worth consulting. Also, there is no guarantee that a practitioner will be up to date in the scientific evidence. It might be better to have a central body which reviews scientific evidence and provides balanced summaries of the state of the evidence in various areas for which med mal disputes are common. Finally, there is the issue of who would appoint specialty court judges. Would judges be appointed who were biased in favor of physician defendents or plaintiffs for that matter. Would appointments be subject to medical malpractice litmus tests?
Mr. Howard, as some health reform bills do, only calls for doing demonstrations of specialty courts. It would be hard to argue with demonstrations. But it not clear that the results from a handful of demonstrations would generalize. In the meantime, reviewing evaluations of other specialty court types would be well worth doing.

Sloan-Chepke, Medical Malpractice. MIT Press, 2008 has a chapter on specialty courts. We provide a detailed discussion of the issues and evidence through about 2007.