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Specialized health courts won’t be established if the 400,000-member American Bar Association gets its way. At its recent midyear meeting in Chicago, the House of Delegates, the ABA’s governing body, resoundingly rejected the concept of health courts championed by a host of “tort reform” organizations, including Common Good. Special health courts would broaden the scope of liability, eliminate jury trials in all cases and the need for lawyers in most, and get speedier results than the current tort system, say proponents. However, specialized health courts strip plaintiffs of their right to a jury trial, cap noneconomic damages and masquerade as workers’ compensation-style no-fault systems, said Jan Mulligan, the chair of the ABA’s Standing Committee on Medical Professional Liability, which drafted the adopted resolution. “Health courts would not only deprive those injured of trial by jury, but would compensate them with less money,” said Mulligan of San Diego’s Mulligan & Banham. “And the injured person still has to prove negligence, although they call it ‘preventability,’ which is likely a term that passed the test in focus groups.” Paul Barringer, general counsel for Common Good, a bipartisan group advocating changes in the law, said health courts offer injured patients a fair trade: Giving up jury trials and scheduling noneconomic damages such as pain and suffering would lead to more people being compensated, and to their receiving their money sooner. “We’re trying to develop an approach that will expedite compensation and dispute resolution for injured patients,” and also establish a more reliable system for health care providers, said Barringer. A more expansive standard of liability would replace “negligence” with “avoidability.” Bills have been introduced in both houses of Congress that would facilitate the creation of state pilot programs. The Virginia House of Delegates passed a bill to establish a health court study task force. A similar bill was introduced in the Maryland House of Delegates, said Barringer. Voluntary and nonbinding pilot courts are not a problem for Dennis Drasco, the immediate past chair of the ABA Section of Litigation, which co-sponsored the resolution with the Section of Tort Trial and Insurance Practice, among others. “Voluntary and nonbinding pilot projects would be a fair way to determine whether it’s a fair means of resolving medical malpractice cases,” said Drasco of Roseland, N.J.’s Lum, Danzis, Drasco & Positan. “A big problem in all the proposals I’ve seen is that they’re mandatory.” Evolving concept Statewide panels would select judges who are lawyers, not doctors, and create a list of experts to whom judges could turn for advice, explained David Studdert, a Harvard University professor of law and public health. The Harvard School of Public Health is partnered with Common Good in conducting research to answer unresolved health court policy questions. They are analyzing individual state constitutional impediments to health courts, doing projected cost analyses, developing a tiered schedule for noneconomic damages-which would have upper limits-and working out the standards for compensation. “Everything negligent is avoidable,” said Studdert. “Some things avoidable do not rise to the level of negligence, but would still be compensable.” The liability standard would mirror those used in Scandinavia and New Zealand, he said. A lawyer would not be required to make an initial claim, which would open these courts to those who can’t get counsel now because their cases aren’t big enough, Studdert said. If a claimant did not like a judge’s decision, he or she could have a hearing and bring his or her own experts. Decisions could be appealed to a medical appellate court, composed of a panel of health court judges. “Caps are not a definitive solution to the many problems in the malpractice system,” Studdert said. “Let’s try health courts out in a few places and follow them for a few years. If it’s not a better system, then we can go back to the dysfunctional tort system.” That’s not how Drasco sees it. “I disagree with the premise that the tort system is broken,” said Drasco. “Juries get it right when given the opportunity.”

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