Miscellaneous

Health Care Courts: "Do No Harm" or "Quack?"

By Anne Skove, Esq.

Will health care courts cure anything? We think not.

Not because specialized courts are bad. No, we like the (anti-) substance abuse courts (except when they trample on defendants' rights). We like the idea of problem-solving, and are all for such courts when they do not cause ethical obligations to run amok. Most are in the "good idea whose time has come" category. But health care courts, which purport to cure all things medmal, will not.

First, they leave an important party out of the equation: insurers. Problem-solving and/or specialized courts are defined in part for their efforts to solve underlying issues. One primary cause of the medmal crisis (if it is a crisis) is the insurance industry. It's easy to hate lawyers -- after all there are so many funny lawyer jokes and cartoons! It's easy to love doctors -- they save lives and are portrayed by hotties on TV! But insurers? We don't quite understand them. Too mathy. Too actuarial, actually!

Who wants health care courts? Some doctors say they do, but we find this as amazing as claims by snake oil salesmen. Do doctors and other medical professionals really want judges (even, or especially, specially-trained ones) to determine what the standard of care should be? The health court bench could become an elite legal-medical group, keeping both doctors and their patients at bar's length.

How broken is the system, anyway? Don't believe the hype. Medical malpractice cases are not spinning out of control. Up until recently, we wouldn't have even known if they were; few courts even counted such cases separately. Contrary to what former Vice President Dan Quayle read in the funny papers, we are not a litigious society; we have a civil justice system. Juries are not running away. Car accidents are far more of a problem than medmal. Health care courts are akin to administering Thorazine to a slightly moody person. At best, they're a needless layer of bureaucracy in an already Kafkaesque system.

Nevertheless, there are those who still believe in health care courts, just as someone, somewhere probably still thinks you can rub warts off with pennies. Every so often the idea is floated in a bill or op-ed. See, e.g., Just Medicine, Philip K. Howard, NYT (April 1, 2009).

Full post as published by court-o-rama.org on April 05, 2009 (boomark / email).