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The injustice of health courts: promoted by tort 'reformers' to adjudicate the claims of injured patients, administrative health courts would unduly increase the influence of health care providers and insurers in resolving medical malpractice cases.

Article Excerpt
Imagine a young woman, Jane Smith, walks into your law office and tells you this story: When she was nine months pregnant with her second child, her labor started. Arriving at the hospital in the middle of the night, she tells the nurse that her first child weighed almost nine pounds at birth and that his collarbone was fractured during a complicated delivery. She also warns the nurse that her doctor has told her that this baby will be even larger, but the nurse seems distracted and does not pay much attention to what Jane has said.

Jane remains in labor all day. The fetal monitor shows signs of distress, but the hospital staff does not investigate. At 5 p.m., after Jane has been in labor for more than 12 hours, the doctor finally orders a cesarean section. But the baby has become wedged behind Jane's pubic bone, and during the delivery, the doctor has to forcibly fracture the baby's arm.

Jane's newborn daughter, Ann, is born with severe brain injuries, having suffered hypoxic ischemia--damage to her central nervous system caused by a lack of oxygen during the long labor and delivery. She is diagnosed with cerebral palsy and is developmentally delayed.

Jane believes that Ann was injured because something went wrong during her delivery. Although Jane's first delivery was complicated, it was nothing like this second experience. The hospital and the insurance company admit as much a few weeks after the baby's birth when they offer Jane several thousand dollars as a settlement. Jane is tempted to accept, but the amount will not cover the costs of Ann's medical treatment and therapies for the coming months, let alone the coming decades.

Jane decides to bring a claim to her state's health court? She is told that she doesn't need a lawyer, but she comes to you for help anyway. As Jane's lawyer, you are given access to her and Ann's medical records. However, you cannot choose an expert to testify on their behalf in court. Instead, the judge brings in medical experts selected by the health court system. The judge also relies on prior cases to make a decision about this one. There is no jury.

The judge, who you're told has experience handling medical negligence cases, determines that the baby's injuries were "avoidable" and that Jane and her baby should receive compensation. The judge awards economic damages based on information you provide to the court, minus the first $4,000 of their medical expenses because of a deductible. The noneconomic damages awarded are based on what the "public" has determined to be "reasonable compensation." Despite Ann's extensive injuries, and the lifelong medical treatments, therapies, and interventions she will need, the compensation she receives is low because it is capped.

Jane is disappointed with the award. However, she could appeal the decision only to another administrative court, which would review it under an "arbitrary and capricious" standard. There is virtually no chance that her appeal would prevail.

Welcome to the world of health courts. It's strikingly different from the civil justice system, where a jury reviewing a delivery like Jane's likely would have found that the defendants deviated from the standard of care by failing to take an adequate and complete obstetrical history and by failing to perform a timely cesarean section. The jury probably would have awarded substantial damages, including those for past and future pain and suffering. (2)

Health court proposals

After focusing their efforts for the past few decades on passing tort "reforms," including caps on damages awards, critics of medical malpractice litigation have now expanded their focus. They seek to drastically reshape the civil justice system by barring medical malpractice claims from civil courts and creating specialized administrative health courts, like the one described in Jane's story.

Proposals for health courts have been introduced at the federal and state levels. In April 2005, Rep....

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