Stephen A. Chen, JD, and David H. Sohn, JD, MD

Medical liability tort reform is often discussed as a part of healthcare reform, yet the means of achieving significant reform have been strongly contested. Caps on payments for noneconomic damages, although effective, may not be politically feasible, leading to increased interest in alternative measures of dispute resolution and health courts. This article focuses on the potential of health courts to effect medical liability reform on a national level.

What are health courts?
Health courts, which shift medical liability cases from jury trials to specialized courts with judges trained in medical matters, were first proposed by the Harvard School of Public Health. Under current medical liability tort laws, plaintiffs must prove duty, breach of duty, causation, and damages. Breach of duty is proven by showing that a physician was negligent and failed to adhere to a standard of care. Injury alone is not enough; the injury must result from the physician’s failure to adhere to a standard of care.

Determining the standard of care, whether the physician violated it, and whether that violation actually led to the injury, however, may involve complex medical issues that a jury may not readily understand. As a result, juries may base their verdicts more on whether they liked or disliked the physician, the plaintiff, or the respective expert witnesses rather than on whether negligence actually occurred. Indeed, little connection exists between true negligence and verdicts. Only 15 percent of all medical liability trials are actually based on true negligence.

The appeal of health courts is three-fold. First, health courts are seen as more accurate. A medically savvy judge or panel of experts is more likely to accurately determine whether a plaintiff’s injury was the result of a medical error or simply an adverse outcome.

Second, health courts are more efficient and cost-effective. Jury trials are long—averaging almost 3 years per case—and expensive, involving payments to expert witnesses and attorneys for both parties. Often, more of the money awarded to a plaintiff actually goes to attorney fees and administrative costs rather than the actual injured patient. Although more than $55 billion is spent on medical liability litigation per year, less than 1 percent of that money is actually distributed to injured patients. In health courts, on the other hand, the facts are presented to a panel that is already medically savvy, employing an independent expert and shortening the trial, resulting in fewer billable hours and lower attorney fees.

Third, and perhaps most important, health courts are likely politically feasible and have received bipartisan support. Both President Obama and Republican presidential candidate Mitt Romney have publicly supported the idea of health courts.

But are they constitutional?
Although some agreement exists on the benefits of health courts, there is wide disagreement as to whether they are constitutional. The most serious challenges are based on whether health courts exceed federal authority and whether they violate the right to a jury trial.

The first question is whether the federal government has the authority to create health courts. Under the U.S. Constitution, all powers except those specifically granted to the federal government rest with the states. One often-used exception to this rule is the commerce clause, which allows Congress to exert power over matters that affect interstate commerce. A case can be made that medical liability substantially affects interstate commerce to an extent that would justify federal authority under the commerce clause.

Opponents of health courts will likely point to recent cases that have scaled back the reach of the commerce clause, including this year’s Supreme Court decision on the Patient Protection and Affordable Care Act (PPACA). Although the scope of the commerce clause may be more defined, its principles remain intact. In addition, federal health courts would be regulating activity (the act of bringing a claim) so they would be arguably distinguishable from the PPACA mandate (which regulated inactivity). Overall, it is reasonable to believe that sufficient grounds exist to authorize the establishment of federal health courts under the commerce clause.

The second challenge is the constitutional right to a jury trial. As a tort, medical liability claims have traditionally been judged in a court of law. However, other tort cases, such as workers’ compensation cases, are exempt from jury trials and instead are adjudicated by administrative judges.

Critics have argued that establishment of health courts would violate the separation of powers by granting judicial powers to administrative bodies. Case law has established that only certain classes of claims can be adjudicated outside the judicial branch. An administrative health court might not fall within this exception.

If, however, claimants would receive a sufficient benefit under an alternative system, the lack of a jury trial may not be fatal. Health court proponents argue that the lowered costs, removal of barriers to bring claims, and use of an avoidability standard (could the injury have been avoided?) rather than the negligence standard (whose fault was it?), for instance, are sufficient trade-offs that justify removing these cases from jury trials.

With respect to the separation of powers issues, case law has established that matters involving public (as opposed to private) rights need not be limited to oversight by the judicial branch. It could be argued that medical liability reform serves a broader public purpose and therefore qualifies as a public right. Courts have already ruled that some claims—such as workplace injuries and injuries from vaccines and exposure to coal dust—could be resolved by systems that did not involve a jury.

Unlike workers’ compensation—in which payments come from a general fund administered by the government, a health court is focused on resolving disputes between injured parties and individual defendants. Thus, opponents could argue that these are private, not public, rights. In addition, systems such as workers’ compensation have a no-fault compensation basis. Although a federal health court would have a different, and arguably lower, threshold for finding culpability, no established case law suggests that this would be sufficient to justify the loss of availability of a jury trial.

Finally, the federal government cannot take a state claim and simply rename it to make it a federal right. An argument that a federal health court would have authority because it is adjudicating a new federal right would need to be carefully thought out to avoid falling afoul of this prohibition. For these reasons, the jury trial issue is likely the most challenging constitutional question relating to health courts.

Summary
Overall, health courts hold promise as a potential means of medical liability reform. Importantly, they may also be politically feasible. Constitutionally, the strongest challenge to the establishment of federal health courts resides in the right to a jury trial, which would be waived in such health courts. The right to a jury trial in noncriminal proceedings is not absolute, however, and a review of recent jurisprudence suggests a constitutionally valid form of health courts will include the following:

• a sufficient benefit to plaintiffs to justify the loss of a jury trial
• the right, while sufficiently similar to a negligence malpractice claim to justify preemption, is sufficiently novel in its aspects to be argued as a new federal right in substance and not just in name
• public interest in federalizing medical malpractice claims

Formulating federal health courts with these aspects in mind may make meaningful medical liability reform both politically feasible and constitutionally valid.

Stephen A. Chen, JD, is an attorney; David H. Sohn, JD, MD, is a member of the AAOS Medical Liability Committee. He can be reached at david_h_sohn@yahoo.com

References

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