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| Shapiro, Washburn & Sharp

Some tort reform advocates not so keen on arbitrarily limiting damages for victims are proposing another idea to significantly alter our country’s medical malpractice system – health courts. What is a health court? Basically, it would be a court specifically designed for medical malpractice and surgical error cases with a judge who has specialized medical knowledge along with a panel of experts to help decide the case.

On the surface, this sounds like a reasonable proposal. Who can argue with having a judge with legitimate medical experience making legal decisions about medical malpractice cases? One big problem: Most health court proposals include a provision that deny a victim the right to trial by jury. This means all decisions will be made by the specialized judge and panel of experts.

This type of proposal is misguided. Reforming our medical malpractice system is an issue worthy of debate, but having the right to trial by jury is an essential aspect of our democracy. As Alexis de Tocqueville said, “The jury…serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions.”

Unfortunately, the White House has decided to explore this misguided proposal and the 2011 budget allots a total of $250 million in Department of Justice grants to "provide incentives for state medical malpractice reforms," $100 million for 2012 and $50 million for each of the next three years.

There is likely to be further debate about health courts and tort reform in general, but there should never be any serious contemplation about arbitrarily restricting a citizen’s right to trial by jury.

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as pro bono services for consumers.



  1. Gravatar for Jennifer Seate
    Jennifer Seate

    I have issues with the other tort reform measures states are trying to take that in my opinion punish the little guy. It all seems to be what is good for big business, the heck with a 30 year old working man with children to support making a large amount of money that is permanently impaired from ever working or being the husband or father he should be and stating that injury is limited in amount. However, the idea of doing something that eliminates a jury trial that is guaranteed by our constituation is even more troublesome. But I think that's part of the goal legisate everyone's responsibility so there is no need for court. Oh wait, aren't there always two sides to a story? So how do we know who's telling the truth? The one with most the money? A little depressing to think about what this is comning to.

  2. Gravatar for james O'Hare RPLU AIC AIS
    james O'Hare RPLU AIC AIS

    Reform is always described as punishment to those that believe they will not benefit and/or fail to maintain a field tilted in their favor. This is true for the plaintiff and defense bar.

    Having people that know what they are doing, especially in a complicated art form ( MED MAL ), the mix of art and science, nuance and opinion, damages or just a bad result?

    Having been a claims guy for 25 years- special med mal courts are not a new idea. Brooklyn Supreme had Clemente, Rizzutto, Spodek and Levine as special med mal judges that were all good at banging heads together in a semi forced mediation at the bench. Stuff got done and they understood why because they knew med mal. To attorneys delight, they would ask experts critical questions on direct and cross exam to clarify a point. Very effective.

    People knowing more is always good. That is why the Hopkins expert is always matched against a Harvard expert. In this case more is better. More credentials, more know how etc.

    The truth of the matter is that it is always better for the plaintiff, if a marginally educated jury decides a case based on emotion rather than the capacity for understanding complex issues from a cellular level. We cant even agree what a peer is and for whose benefit "peer" was suggested by the guys in the powdered wigs.

    All good cases get settled. Less than 7% get tried, the true coin flip cases. So maybe we get a Health court that bangs heads for the other 93% of the cases.

    Lets go with the smart people.


    Jim O'Hare RPLU AIC AIS

    VP med mal claims

    Physicians Ins co Pompano Beach Fl

  3. Gravatar for Jim Lewis
    Jim Lewis

    Thanks for your thoughts on this. True, its a controversial issue and a healthy debate is appropriate.

    As a plaintiff's side injury attorney, my reaction is to oppose this mainly for the simple reason it tinkers with our U.S. Constitution and changes the simple notion the founding fathers set forth: a jury of our peers. That means everybody in the community is randomly one of our peers, and not a bunch of doctors, nor for that matter a bunch of injury victims or victim's lawyers either!

    If we stack a deck for one side or the other, is it really a level playing field? No.

    If a lawyer is sued for legal malpractice, should the lawyer be able to get all lawyers on her jury? So, I still am against radically changing the constitutional right to trial by jury for any sort of civil dispute.

    And, after trying alot of cases, I quarrel with the notion that "smarter" "well educated" judges or jurors mean a more righteous outcome for any person or company. Education level has nothing to do with "common sense" and we need to stick with the tried and tested right to trial by jury.

    That being said, if BOTH parties to a medical malpractice dispute AGREE to put the dispute before an alternate "health court" judge, that is fine if it does not eliminate either party's right to a jury trial if they desire one.

  4. Gravatar for james O'Hare RPLU AIC AIS
    james O'Hare RPLU AIC AIS

    Thanks Jim_ I never argue with attorneys about the Law. I am not an attorney, but retain them. Debate is sport for my people.

    A few things, if you don't mind:

    The defendant is provided the right of being judged by his/her peers. This is not for the plaintiff, as they are not on trial. Am I correct?

    Blacks law dictionary- and most others define "peer" as like rank and station in society."

    Would someone then, with a post graduate degree be a peer? I think so. I did not suggest 6 docs in the box. I'd agree to 6 college degrees.

    We may be all peers when that doctor or lawyer robs a bank or steals something. We all have the capacity to rob a bank, not so much when transplanting a kidney.

    A marginally educated jury is always better for the plaintiff bar. this statement is equivalent to stating that smoking is bad for you.

    You mention stacking the deck- Having 6 HS grads deciding whether the physician with 10 years of specialized post HS training, performed the the retrograde cholangio=pancreatogram within the standard of care is my defintion of stacking the deck.

    Common sense cant determine which cell is cancer. Thats why I go to a doctor and not my barber for a physical. Maybe joe the barber has more common sense, but that is not what I am looking for.

    As far as righteous outcomes or justice: Does it really have anything to do with justice? Its all about money isnt it? It's only justice if you win alot of cash.

    Winning a case and being awarded $5 bucks could be righteous and just but that's not what its about.

    regards Jim

    Thanks for allowing me to play along.

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