Proposed Health Court seek to remove juries from medical malpractice cases.

The United States Congress, long a proponent of tort-reform has entered a new phase in its goal of reducing jury awards: the creation of so-called health courts. The target of this Congressional action is medical malpractice cases. Under these proposed health courts, plaintiffs who bring medical malpractice cases would be forced to litigate their case before an administrative law judge, not jurors.

The administrative judge, who would be advised by neutral medical malpractice experts, presumably physicians and nurses, would render written opinions in these cases. The proposed courts would determine the award for economic damages, while awards for pain and suffering would be based upon formulas established by each state. Supporters of health courts cite the predictability and uniformity of awards as its most salient virtue. Opponents believe that this is nothing more than a Congressional end-around their stalled legislation aimed at capping medical malpractice awards.
One such group opposing such a proposal is the American Bar Association. In February, the ABA House of Delegates passed a resolution opposing the creation of health courts stating that such an enactment would “deny patients injured by medical negligence the right to request a trial by jury with the right to receive full compensation for their injuries.” Moreover, the ABA is concerned that by establishing a schedule of injuries/pay outs, the health court scheme “would impose a de facto cap on non-economic damages in injury claims.”

Although it is unlikely this legislation will pass in the Congress, let alone, the New Jersey State Legislature, it is another reminder that the rights of individual plaintiffs are often the target of so-called “tort-reformers.” In New Jersey, the current system seems to work to eliminate the filing of frivolous claims, while the large portion of cases settling out of court never result in high jury awards. To remove juries and replace them with formulas for determining whether a victim of medical negligence should be compensated for pain and suffering is to trivialize their suffering. Victims of medical negligence deserve an opportunity to be heard by a jury of their peers.