Juries of ordinary citizens generally aren’t asked to decide complex legal disputes about maritime cases, tax law, bankruptcy, workers’ compensation, divorce and child custody matters. And for good reason. While the principle of trial by jury is sacrosanct in America, basic fairness and common sense demand that such highly technical issues require expertise from witnesses and judges experienced in dealing with them.

That’s not so for cases involving allegations of medical malpractice, which are no less complicated but still left in the hands of lay jurors with little knowledge of medicine. Trials often amount to a game of roulette. Jurors hear testimony from dueling expert witnesses—hired guns who favor one party’s interpretation of events. The most personable witness may sway a jury no matter how fanciful his theories are. Jurors receive little guidance from judges as to how to evaluate that testimony or how much to compensate deserving plaintiffs.

The medical liability system is a mess, a highly inefficient and arbitrary arena where too much compensation is awarded to some injured patients and little or none to others. Deserving patients wait years to get compensated. As much as 60 percent of awards are spent on attorneys, expert witnesses and administrative expenses. 

With health courts in New Zealand, Sweden, and Denmark, claims resolution takes six to nine months. The average time in the United States is five years.

Physicians can’t predict what a jury will decide is the appropriate standard of care. As a result, they engage in “defensive medicine”—actions designed to protect them in court if they get sued. This results in unnecessary cesarean sections, painful breast biopsies in women with lumps unlikely to be cancerous, and hospitalization of patients who don’t need that level of care. A 2005 survey of 824 Pennsylvania doctors found that 93 percent admit to risk aversion tactics such as over-ordering tests, abandoning high-risk procedures, making needless referrals and avoiding the sickest of patients. The price tag for defensive medicine is at least $60 billion a year, according to the Department of Health and Human Services. 

For doctors, the threat of being sued is pervasive. One in seven obstetricians/gynecologists has stopped delivering babies, and three-quarters have been sued at least once, according to the American College of Obstetricians/Gynecologists. Physicians have faced double-digit-plus premium increases for years and many have been driven out of practice. This punitive system encourages health professionals to hide mistakes instead of learn from them.

Various tort reform proposals have helped at the margins. Caps on awards for pain and suffering, favored by the American Medical Association, do moderate malpractice premiums. But caps kick in only after an award is made. The medical malpractice crisis is deeper and more profound than a few patients getting too much money in a few cases.

One intriguing remedy is the creation of specialized health courts, where judges experienced in medicine would try cases without juries. The concept is backed by the nonpartisan legal reform group Common Good in conjunction with the Harvard School of Public Health. The Robert Wood Johnson Foundation has donated $1 million to promote the creation of these courts in six states: Colorado, Maryland, Massachusetts, New York, Pennsylvania and Wyoming.

Approaches similar to health courts already are successful in New Zealand, Sweden and Denmark. Only 15 percent of the cost of running the compensation system is spent on administrative costs in these countries, notes Paul Barringer, Common Good’s general counsel. The rest goes to patients. Claims resolution takes six to nine months. The average time in the United States is five years.

Common Good and the Harvard School of Public Health have devised a prototype for American courts and hope to set up demonstration projects here.

Among the benefits of health courts:

• Judges would be assisted by neutral expert witnesses and guided by evidence-based practice guidelines. Unlike juries, they would issue written opinions that establish precedents and standards of care, removing much of the uncertainty physicians now practice under.

• Awards would be more consistent. Juries sometimes base awards more on sympathy than facts. An injury “worth” $100,000 in one place might bring $2 million or nothing at all with a different jury. Health courts could make awards based on a schedule of benefits, similar to workers’ compensation.

• More patients would be compensated. Under the present tort system, plaintiffs must prove negligence by a doctor or hospital. With health courts, claimants need only show that the injury would not have occurred if best practices had been followed. The standard would be whether the injury was avoidable or preventable, not whether a physician fell below the standard of care. The entire process would be far less adversarial.

• Although more claims would be filed, the average award would be considerably lower. That’s been the experience with the Kaiser Permanente system in California where 6 million patients have signed agreements to resolve malpractice disputes through arbitration rather than jury trials.

• Perhaps most important, health courts would promote patient safety. Reporting information about injuries to a central data base would allow experts to determine why errors occur and how they can be prevented. The current punitive system encourages defendants to hide mistakes rather than examine them.

Bills are pending in Congress to authorize grants to states to set up pilot projects involving health courts. Proponents know it’s an uphill fight, considering the political clout of trial lawyers who favor dealing with jurors who can be swayed instead of judges who have some expertise in medicine.

That’s why Common Good is pushing for small demonstration projects rather than a complete and sudden overhaul of the tort system, says Barringer. Initially, a pilot project might work best within a hospital system.

Whatever form specialized health courts take, they could show the way for quicker and fairer compensation to the deserving, and they might reduce the incentive for doctors to engage in defensive medicine that puts patients at risk.

So far, health courts are an experiment in need of a sponsor. But they just might be the cure to alleviate the pain suffered by all sides in our present highly dysfunctional system.

Mark Crane is a former USA TODAY editorial writer.

Image credit: Photo by flickr user bloomsberries.