Some reformers are trying to move malpractice litigation into specialized “health courts” modeled on the worker’s compensation system.  Congress is considering legislation that would fund 10 pilot projects across the country.


According to two law professors at Case Western Reserve University, however, health courts are a bad idea. They would be unwieldy, prohibitively expensive, and a disservice to injured patients.

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“These proposals are based on unfounded claims that the existing system is broken and spinning out of control, when in fact it is quite stable and works remarkably well,” assert Max Mehlman and Dale Nance. Mehlman also is a professor of bioethics at the university’s medical school.

Their report, “Medical Injustice: The Case Against Health Courts,” was prepared under a grant from the American Association for Justice (AAJ), a professional organization for trial lawyers. They conclude the concept is misguided and implementation would be “bad public policy.” Among their criticisms:

  • Health courts would require the creation of new and expensive bureaucracies.
  • Funding them would require either substantial increases in malpractice premiums or shifting costs to taxpayers and employers and employees who pay for health-care insurance.
  • Patients would be forced into these bureaucracies and deprived of their right to a jury trial.
  • Plaintiffs would have to prove the “avoidability” of their injuries, not “negligence,” an established and well-understood legal standard.
  • Wrongdoers would not be adequately punished, and the deterrent effect of the regular court system would be reduced.

“This report exposes the latest attempt to deprive patients of their rights,” says Jon Haber, AAJ chief executive officer. “Health courts force patients to seek compensation from bureaucracies dominated by unaccountable insurance companies.


“In the end, patients will not be safer, and negligent hospitals and doctors will not be held accountable for medical errors,” he contends.