Secondary Logo

Journal Logo

You've Been Served: Taming the 800-Pound Gorilla

Hossfeld, George MD

doi: 10.1097/01.EEM.0000413673.28138.aa
You've Been Served


One of the more creative suggestions for improving our very broken medical malpractice system is based on understanding that medicine is complex and nearly impossible for a typical jury member lacking medical expertise to understand. Even physicians are unfamiliar with many issues outside their own scope of practice. Without such understanding, it's futile to think jurors could make an informed decision. That's not making any judgment about intelligence, mind you. Ask me something about hydraulic engineering, nuclear reactors, or even current chemotherapy regimens for common cancers, and you'll see complete ignorance.

While most of us physicians can comprehend at least the majority of medical issues, put yourself in the shoes of a non-medical juror. You might be treated to the testimony of well credentialed experts on each side, all of whom present compelling arguments for and against a defendant. Much of the terminology is not easily understood, never mind the subtleties. Could such a juror be criticized for making poor decisions? Though judges with little medical training or experience exist to a somewhat lesser extent, they are still too prevalent. It's no surprise that two similar cases may end with grossly different results.

Health courts are an attempt to take complex specialized cases out of the hands of those not qualified to judge them. Before defenders of the Constitution protest that the Seventh Amendment is being trampled, it should be stated that this is hardly a new concept. We already have specialty courts for tax disputes, worker's compensation, bankruptcy, and vaccine liability. Cases can move to final judgment in a more timely manner and at a much lower price. We also use them in family courts, where cases are disposed relatively quickly. Can you imagine the societal cost of waiting years for divorce jury trials?

We could have specially trained judges — not juries — in each of these areas of the law make educated decisions with written rulings that could guide future medical law and medical care. Judges trying only health care cases naturally develop expertise, and that acumen can easily be supplemented with additional training. Court-appointed neutral experts, not the current system of experts compensated by plaintiffs or defendants, can advise the judge if requested. More uniformity between cases evolves as established guidelines emerge. Written decisions can serve as precedents for future allegations and as guidelines for improvements in injury prevention.

The advantages of health courts are legion. Not only could that 800-pound gorilla in the middle of the ED known as “defensive medicine” be tamed as doctors became more trusting of the fairness and uniformity of health care litigation but the enormous amounts of money spent on trying cases (currently estimated at 54 cents of every malpractice premium dollar) could be more quickly and fairly delivered to the truly deserving.

The highly visible group advocating for health courts in America is a nonpartisan organization known as Common Good. It has advocated with the Harvard School of Public Health for federal pilot projects to demonstrate the effectiveness of health courts. Common Good has the backing of an amazingly diverse consortium of parties who have widely differing viewpoints on the medical and legal systems. Medical school deans, conservative and liberal consumer groups and think tanks, and legislators from both parties have managed to put aside their own narrow interests (at least regarding this issue) to advocate for health courts. Many professional medical societies have endorsed its principles as well. Previous directors of the Joint Commission and a former secretary of the Department of Health and Human Services have voiced support.

With everyone seemingly in favor of giving health courts a try, why in the world has it not happened? As is usually the case in enigmas like this, one need only follow the money to find the answer. While always verbally espousing rights for the little guy to get his just compensation, it just so happens that trial lawyers themselves reap the majority of the money to be had in the existing medical litigation system. The trial bar is one of the most powerful lobbying groups, if not the most powerful, and it guards its golden goose like the multibillion dollar asset it is.

Health courts are an idea whose time has come. The more we educate our patients, neighbors, and families about these issues, the sooner our politicians will be forced to end this unjust malpractice system. Remember, each of us is merely one bad outcome away from being the one in the defendant's chair.



Dr. Hossfeldis an assistant professor of emergency medicine at the University of Illinois-Chicago. He is a past president of the Illinois College of Emergency Physicians, and has been involved in the legal side of emergency medicine for more than 25 years. A collection of his columns is available on the EMN web site:

Copyright © 2012 Wolters Kluwer Health, Inc. All rights reserved.