In November, the Law Tribune published a special section on medical malpractice, including an article by Nora Freeman Engstrom, a professor at Stanford Law School, titled “Should Med-Mal Cases Be Removed From Court System?” Engstrom told a “cautionary tale” from the experience of the Vaccine Injury Compensation Program in addressing the potential benefit of “moving medical-malpractice cases outside the traditional court system into freestanding, dedicated tribunals,” i.e., “health courts.” Engstrom’s bio indicates that “her current work explores the day-to-day operation of the tort system and particularly the tort system’s interaction with alternative compensation mechanisms,” so her observations deserve weight.
The idea of health courts for medical malpractice cases has initial appeal because the current system is basically broken, if, indeed, it ever worked well. The list of deficiencies is long: cases can take years to wend their way through the courts, by the end of which plaintiff patients and defendant physicians or other medical providers are drained and disillusioned, if not battered and beaten. Discovery costs tens of thousands of dollars more than is needed. Some cases in which the injured patient should be entitled to reasonable compensation for actual error have fallen by the wayside because the process is so costly. Many plaintiffs counsel do not have the wherewithal to see claims to conclusion. Nonmeritorious cases clog the courts and alienate health care providers as well as the public. Occasional huge verdicts threaten provider organizations and purportedly justify overzealous defense tactics by their insurance companies and lead to cries for reform from providers and politicians.
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