The Truth About So-Called
“Health Courts” by George S. Tolley III
Health courts -- special administra-
tive tribunals for malpractice lawsuits -- recently have been endorsed by the medical establishment, which in turn has funded “astroturf ” groups like Common Good to pitch the idea to legislatures. But studies now reveal that health
courts are burdensome, expensive and damaging to injured patients. That’s the conclusion drawn in a recent report by two Case Western University professors, who describe the concept as “critically flawed.”
Misleading Information To be sure, health courts are “dressed
up” in appealing language touting the scheme’s increased fairness and reduced expense. But such information about health courts is misleading, says Dr. Max Mehlman, one of the professors from Case Western University who authored the critical study. According to Dr. Mehlman, “The first
thing is that [tort reform advocates] greatly exaggerate the problem. Once you look at the data, you find that the tort system does a good job separating out weak cases from stronger cases. Juries do a good job sorting through expert testimony.”
With regard to the “costs” of mal-
practice cases generally, the report calculated that tort costs are only half of 1 percent of total health care costs. This figure also finds support in stud- ies commissioned by the health care industry itself. Another red herring is that health
courts would make it easier for victims to receive compensation. Relying on a Harvard-based study, the independent consumer watchdog, Public Citizen, reports that 90% of all malpractice vic- tims would get nothing under Common Good’s health courts scheme, and the few victims who receive anything would get much less than they would under the traditional system of civil justice.
Maryland in the Crosshairs In Maryland, of course, we already
know that administrative “health courts” do not work. An experiment in mandatory medical malpractice arbitration was abandoned nearly 10 years ago as a dismal failure. Unfortunately, Maryland is one of
the jurisdictions targeted by Common Good and other national tort reform groups, who want our state to reprise its role as guinea pig for this scheme to erode the right to jury trial.
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Readers are invited to submit Letters to the Editor to stimulate dialogue on articles and features published in the Trial Reporter. For more informa- tion, contact the MTLA office by phone at 410- 539-4336 or email at
mtla@mdtriallawyers.com.
Winter 2008 Trial Reporter 59 In each of the past several legislative
sessions, tort reformers introduced “health courts” initiatives designed to overhaul the state’s civil justice system. For example, House Bill 48 (2007) would have diverted malpractice cases to a panel of local doctors, who would decide whether their colleague had been negligent after a closed, confidential proceeding where the Rules of Evidence do not apply, and those same doctors could work for (and get paid by) the defense in any appeal. It doesn’t take a constitutional schol-
ar to see how such a scheme would be unfair to victims of negligence. n
About the Author
George S. Tolley III is a partner at Dugan, Babij & Tolley, LLC, a member of the Primerus Group of Law Firms, dedicated to the highest standards of integrity, civility and quality of work product. He is admitted to practice law in Maryland, West Virginia and the District of Columbia. He is currently parliamentarian of the Maryland Trial Lawyers Association and has served as chair of the MTLA Medical Negligence Section. He is currently chair of the MTLA Legislative Committee.
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