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The health courts facade: tort 'reformers' tout health courts as an administrative solution to medical negligence claims. But the proposals are not likely to be effective - and may cause more harm than good.

Article Excerpt
For 30 years, the insurance industry and other special interests have been trying to force people injured by medical negligence, defective products, fraud, and other misconduct to waive their Seventh Amendment right to trial by jury and have their disputes resolved outside the court system. Now, yet another proposal to dismantle the jury system is floating around the halls of federal and state legislatures.

The plan, euphemistically known as "health courts," would force all medical malpractice cases into a new administrative structure based on the workers' compensation model and eliminate the right to trial by jury. Proponents tout health courts as being good for patients, but nothing could be further from the truth.

The concept is being pushed heavily by Common Good, an organization with a decidedly anticonsumer history on liability issues, so some healthy skepticism of the proposal is warranted. Common Good was founded in 2002 by Phillip Howard, a senior corporate advisor and strategist in the New York City offices of the Covington & Burling law firm.

Not only has this corporate firm represented industries--like tobacco and chemical--that produce poisonous products, it also is one of the principal architects of the tort "reform" movement. (1) In fact, throughout the 1990s, Covington, as counsel for the Tobacco Institute and cigarette manufacturers, served as a funnel for tobacco industry money to various national and state tort "reform" public-relations efforts and organizations. Covington and Big Tobacco sometimes helped to set up those groups. (2)

A February 2005 Progressive Policy Institute (PPI) report describes the health court proposal this way:

Malpractice claims should no longer be heard in civil courts. Instead, they could be handled in administrative processes overseen by the states. The system would be similar to the one that handles workers' compensation claims. This will give more injured patients access to quicker and less expensive justice.... [Health court review boards] would investigate claims and determine if they are clear, uncontestable cases of malpractice. In such cases, they would simply order the injured patient's health care provider to pay damages according to the schedule of benefits.... In cases where a review board determines that a patient's injury is clearly not malpractice, or is too minor to merit an award, the board would dismiss the case.... In cases where the circumstances of an injury are not cut and dry ..., the review board would steer the case to the health court for a full trial. (3)

This so-called trial would not be...

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