AMA outlines plan for 'health courts'.

The American Medical Association (AMA) has adopted principles for the establishment of so-called health courts as an alternative to jury trials for medical malpractice cases.

The AMA's proposal, announced in June, would give broad jurisdiction to state-level health courts and limit or eliminate the use of juries. A switch to health courts would curb "frivolous" lawsuits and "sky-high medical liability premiums" and would "fix the broken medical liability system," according to the AMA.

Some of the plan's features--such as damages caps, limits on attorney fees, and a requirement that plaintiffs supply an "affidavit of merit" from a doctor supporting their claim--are proposals the AMA has repeatedly put forward, with limited success. State supreme courts in Arizona and Oklahoma have struck down affidavit requirements as unconstitutional in the past year, and lawmakers in other states have declined to enact fee caps.

Other key parts of the AMA proposal:

* States must grant health courts "exclusive jurisdiction over any lawsuit (contract or tort) which involves an injury arising from the alleged negligence of a health care provider."

* Over time, health courts will also handle cases involving managed-care independent review decisions and other health law issues.

* In case of a jury trial (if one is allowed), jurors must attend an "educational session" to learn about medical care delivery "and the distinction between negligence and adverse outcomes as well as appropriate guidelines on the purpose of awarding noneconomic damages."

* Negligence is the threshold for patient compensation.

* Judges may not limit economic damages but must set noneconomic damages according to a schedule.

* Punitive damages, if allowed, can be awarded only when the plaintiff proves fraud, malice, oppression, or the intent to do harm.

* Only licensed doctors of medicine or osteopathy may testify as expert witnesses.

Health court proponents bill them as a way to ensure that all injured patients receive compensation. Of the various proposals for health courts, the best known (and most frequently cited) was a joint model put together by Philip Howard, founder and chairman of Common Good, a tort "reform" organization with offices in New York and Washington, D.C., and by the Progressive Policy Institute, a D.C.-based think tank.

Health court proposals have met vociferous opposition. Lawyers both in and out of the plaintiff bar--criticize health courts as unconstitutional and contrary to many established legal principles. Last year, the American Bar Association House of Delegates overwhelmingly passed a formal resolution opposing the creation of health courts. (See Carmel Sileo, ABA Opposes 'Health Courts' Legislation, TRIAL 42 (May 2006).)

In their book Medical Injustice: The Case against Health Courts, Maxwell Mehlman, director of the Law-Medicine Center at Case Western Reserve University School of Medicine, and Dale Nance, a law professor at Case Western School of Law, call health courts "the latest in a series of proposals over the years to eliminate or drastically reduce the rights of injured patients in order to accomplish various goals."

In May, Sens. Michael Enzi (R-Wyo.) and Max Baucus (D-Mont.) introduced the Fair and Reliable Medical Justice Act, which would require the federal government to create grants to fund model health courts in 10 states.

Sue Steinman, AAJ's director of policy, who lobbies on health care issues for the association, said Congress should be addressing health insurance issues and prescription drug costs, not medical malpractice.

"Today, medical malpractice cases amount to a mere. 15 percent of the entire civil docket," Steinman said. "At a time when judges are underpaid and the judiciary is underfunded, it's irresponsible to divert resources away from where they are most needed. Judicial resources should not be misdirected to fix a so-called malpractice crisis that doesn't exist."

The AMA's proposal, Health Court Principles, is available at www.ama-assn. org/amal/pub/upload/mm/378/ healthcrt_principles.pdf.