ABA opposes 'health courts' legislation.

The American Bar Association (ABA) recently lent its considerable clout to the debate over mandatory "health courts," adopting a formal resolution opposing the creation of these administrative tribunals to replace trial courts in medical malpractice cases.

Health courts are heavily favored by medical organizations and tort "reform" advocates. Critics say they are unconstitutional and that studies have found that juries are competent to handle all types of medical cases. All parties agree that establishing health courts would represent a massive change in the civil justice system.

The resolution, which passed overwhelmingly at the February meeting of the ABA's House of Delegates, states that "the nature and extent of damages in a medical malpractice case are triable issues of fact (that may be decided by a jury) and should not be subject to formulas or standardized schedules."

Janice Mulligan, chair of the ABA's Standing Committee on Medical Professional Liability and author of the report on which the ABA based its resolution, said response to her proposal was "overwhelming." Some media reports characterized the vote as divided, a contention Mulligan rejected.

"Our resolution had nine cosponsors, all subcommittees within ABA," she said. "These included the sections on Alternative Dispute Resolution, on Individual Rights and Responsibilities, on Delivery of Legal Services, even the Insurance Section and the Commission on Law and Aging. The lone dissenters were two individual lawyers who represent health insurers."

At press time, Congress was expected to take up legislation establishing health courts based on a model developed by Common Good, a tort "reform" advocacy organization, and the Harvard School of Public Health. Another proponent is the Progressive Policy Institute (PPI), a centrist think tank run by former Bush administration staffer Marshall Wittman.

Under the plan, med-mal cases would automatically go to separate, specialized health courts, the cases would be tried by an administrative judge in consultation with a health law expert rather than a jury, participation would be mandatory, and compensation would be set according to a strictly defined schedule.

"It's a backdoor move to cap damages," Mulligan said. "They use different language, they call it a 'schedule,' but a damages cap is exactly what it is."

In her report to the ABA, Mulligan wrote that a separate health court system "runs counter to a number of established principles of the [ABA]."

For instance, the PPI/Common Good proposal directly contradicts "existing ABA policies against any limit on pain and suffering damages in tort actions." And the lack of any provision for a jury trial violates ABA policy that "parties in civil matters have the right to a fair, accurate, and timely jury trial in accordance with the law."

In late February, ABA President Michael Greco sent a letter to Reps. James Sensenbrenner Jr. (R-Wis.) and John Conyers Jr. (D-Mich.), who head the House Committee on the Judiciary. "ABA policy has long endorsed the use of alternatives to litigation for resolution of medical malpractice disputes only when such alternatives are entered into on a voluntary basis," Greco wrote.

Health courts are sometimes compared to the workers' compensation system--a comparison the ABA calls "inappropriate." In his letter, Greco noted that "under workers' compensation systems, there is a trade-off of the loss of a right to bring an action in court that is counterbalanced by a 'guaranteed' award that is not fault-based. With the proposed 'health courts,' an injured patient loses the right to bring an action in court but receives no guarantee of an award."

A similar letter went to Sen. Michael Enzi (R-Wyo.), chair of the Senate Committee on Health, Education, Labor, and Pensions.

Reaction from health court advocates was swift. Common Good issued a statement saying that the action "puts the ABA in conflict with a broad coalition of patient advocates, consumer groups, and think tanks that are calling for pilot projects of special health courts to begin to restore relief to medical justice." In a letter to the Wall Street Journal, Common Good Chairman Phillip Howard said the ABA "reliably opposes reforms when its own pocketbook may be affected."

Mulligan pointed to the large number of attorneys who supported the resolution. "These weren't plaintiff lawyers," she said. "These were lawyers from every walk of law, with no ax to grind, people who won't make any money from it either way. Simply put: They get it. They get that there is a question of basic fairness, that we cannot replace 'trial by jury' with 'trial by doctor.'"