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As debate over tort reform continues across the United States, several states are considering the creation of medical malpractice courts to help streamline what many view as costly, complex litigation. The courts would likely be designed to eliminate juries and allow a judge with medical expertise to decide cases, possibly with the help of court-appointed experts. Proponents assert that medical malpractice courts could be more effective and cost-efficient. Opponents counter that taking juries out of the equation would be unconstitutional. While a medical malpractice court has yet to be created, the idea is being debated in at least four states — Illinois, Maryland, Massachusetts, and Pennsylvania — through legislation, budget maneuvers, or proposed pilot programs. In addition, Common Good, a New York-based nonprofit group advocating legal reform in education and medical malpractice, has been outspoken in its support of it. Franklin Stone, the executive director of Common Good, says that it is currently in talks with 10 states, including New York and Virginia, regarding the creation of special health courts. PROPONENTS WEIGH IN Proponents assert that medical malpractice courts would allow claims to be processed faster, making it more cost-efficient, and that judges with medical expertise could provide a fairer assessment of expert testimony. “I think it’d be a great idea,” says Dr. William Sullivan, the founder of the MedicoLegal Group, which in the past referred expert witnesses to attorneys in medical malpractice cases, but now only lectures on medical and legal issues. He is also the director of emergency medicine at St. Mary’s Hospital in Streator, Ill. “You’d have judges who know a lot more about the cases,” Sullivan says. “It’s [an idea] that’s been consistently advocated to get rid of some of the emotional impact of the juries who see these people who may have been injured but it may not be due to a physician’s negligence.” Opponents insist that it would take away the constitutional right of a trial by jury. “The right to trial by jury is the fundamental bedrock of our democracy, and, unfortunately, corporate America thinks that the people shouldn’t decide, the industry should,” says Carlton Carl, a spokesman for the Association of Trial Lawyers of America. “That’s what they’re saying.” In Massachusetts, the House and Senate voted unanimously in November to override Gov. Mitt Romney’s veto of a budget proposition that would create a special commission to look into the feasibility of a medical malpractice court. In Maryland, Gov. Robert Ehrlich Jr. recently released a report from his task force on medical malpractice reform that called for a study on the establishment of special health courts. However, state Sen. Brian Frosh (D-Montgomery) says that it wasn’t necessary and not a likelihood in the state. “The ultimate work done by juries is, I think, on the mark,” Frosh says. “If we were to take away medical malpractice cases from juries, why not take away antitrust cases or complex criminal cases? Part of the reason is that it’s unconstitutional. It gets around the various state and federal laws for trial by jury.” But Sullivan points out that there are already courts without juries. “Well, you could say [it's unconstitutional that there are no juries] about tax courts, too,” Sullivan says. “I’m sure a lot of people would love to have some sympathetic jurors in a tax court. That’s why they have tax courts — there’s a bunch of specialized knowledge that you need, and it brings out a fairer verdict for both sides.” In Pennsylvania, a House bill was introduced in 2003 that would have created a Medical Professional Liability Court. The bill never made it out of committee. “It was the source of a lot of discussions for the greater part of four or five months,” says Mark Phenicie, the legislative counsel for the Pennsylvania Trial Lawyers Association. “But it hasn’t happened. . . . We have the additional impediment here that all of the judges are elected. If I’m a judge, I probably wouldn’t want to have to run in a partisan statewide campaign just to be in a malpractice court.” In Illinois, Republican legislators have proposed a pilot medical malpractice court that would serve 37 counties. Common Good promoted the idea in Illinois earlier in the year. Lindsay Fortado is a staff writer for The National Law Journal , the ALM newspaper where this article first appeared.

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