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The Agenda

NRO’s domestic-policy blog, by Reihan Salam.

Low-Hanging Fruit: Health Courts



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Reforming the medical-liability system would hardly be enough to tackle the high cost of American medical care, but it has the potential to greatly benefit patients injured by medical mistakes, as Philip K. Howard observes:

It takes an average of three to five years to resolve a claim and wastes almost 60 percent of an award on lawyers’ fees and administrative costs. And in about 25 percent of the meritorious cases, the injured patient gets nothing.

The Common Good Foundation, the non-profit led by Howard, has long championed specialized health courts as a potential solution:

Health courts would have judges dedicated full-time to resolving health-care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in complex areas where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers’ compensation, vaccine liability and other specialized areas.

But this raises an interesting conceptual question — last fall, Tim Lee argued that the creation of the Federal Circuit Appeals Court, a specialized patent court, has proved highly counterproductive, as the court has a strong pro-patent bias:

What explains the Federal Circuit’s relentless pro-patent bias? One obvious theory is what economists call “regulatory capture”: the theory that over time, public officials will come to identify with the interest groups they are supposed to be supervising. The theory is usually applied to regulatory agencies in the executive branch (think FCC commissioners becoming Comcast lobbyists), but the theory seems to fit the Federal Circuit as well.

Patent attorneys tend to have a pro-patent bias, and these attitudes seem to have rubbed off on Federal Circuit judges. Most obviously, a significant minority of Federal Circuit judges have been patent lawyers themselves, whereas judges on other courts almost never come from a patent law background. But beyond that, the heavy load of patent cases on the court’s docket means that the judges of the Federal Circuit are constantly interacting with patent lawyers. In addition to hearing their arguments in the courtroom, they read the same patent law publications as the lawyers, hire young patent lawyers to clerk for them, and are invited to speak at events organized by the patent bar.

Moreover, the prestige of the Federal Circuit itself is directly tied to the prominence of patent law in the American legal system. If the Federal Circuit had followed the stricter rules in place before the court was created, patent law might have remained a legal backwater, receiving little attention from either the legal profession or the general public. That, of course, would have made the Federal Circuit a less prestigious place to work. [Emphasis added]

The administrative health courts Howard has in mind are different from the Federal Circuit in many important respects — they’re arguably more like other special courts Howard identifies as precedents, e.g., those that handle “tax disputes, family law, workers’ compensation, vaccine liability and other specialized areas.” One assumes that judges in health courts wouldn’t generally be drawn from the ranks of trial lawyers, in part because the work wouldn’t be particularly remunerative, and the same prestige-chasing dynamic isn’t likely to obtain, as these courts would be far less rarefied than the Federal Circuit. The basic idea behind health courts is that juries can’t necessarily make decisions regarding medical mistakes as effectively as specialized judges, which seems reasonable enough.

(On a separate note, like William Stuntz and Stephanos Bibas, I tend to think that jury trials should play a larger role in other domains, like criminal justice, in which jury trials have been marginalized by the near-universalization of plea-bargaining.)



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