As part of an ongoing effort relating to liability of health care providers, proposals are being discussed to create "health courts." Under a "health court" system, medical negligence litigation cases would be removed from the court system where cases are heard by judges and/or juries, and instead would be heard by health care tribunals who have expertise in health care, but who are not necessarily judges or even lawyers. A "health court" is an administrative tribunal. The proposals currently use a Workers' Compensation model and damages are subject to standardized schedules or formulas.

There was attention given to "health courts" legislation in the 109th Congress. H.R. 1546 was introduced in the last Congress by Congressman Thornberry (R-TX) on April 12, 2005. It would have provided grant funding to the states to develop, implement and evaluate health care tribunals. It was referred to the Judiciary Committee. S. 1337 was introduced on June 29, 2005 by Senator Enzi (R-WY). It was referred to the Committee on Health, Education, Labor and Pensions. It would have provided demonstration grants to the states to develop, implement and evaluate a health court model. Both these bills died at the end of the 109th Congress. The ABA testified on June 22, 2006 at hearings on medical liability proposals including S. 1337 before the Senate Committee on Health, Education, Labor and Pensions. The ABA also testified (PDF) before the House Committee on Energy and Commerce, Subcommittee on Health on alternatives to medical malpractice litigation such as "health courts," on July 13, 2006. Cheryl Niro represented the ABA at both hearings. In the 110th Congress, legislation has been introduced in both the House (H.R. 2497) and Senate (S. 1481) to provide demonstration grants to states to develop alternatives to medical malpractice litigation. Health courts are not specifically listed as an alternative.

• Empirical studies demonstrate that juries are competent to handle medical malpractice cases. Proposals to establish "health courts" take away the right to a jury trial.


• Using the Workers' Compensation model for medical malpractice cases is inappropriate. In these programs, there is a trade-off of loss of a right to bring an action in court that is counterbalanced by a "guaranteed" award that is not fault based. With "health courts," the plaintiff gives up the right to bring an action in court for no guarantee of an award.


• A schedule of awards is not appropriate in medical malpractice cases. Would it be fair to award a pre-fixed award for negligence that resulted in a paralyzed hand for a surgeon, lost or impaired vision for an artist, or lost or impaired hearing for a musician?

The ABA opposes the creation of a system that requires injured patients to utilize "health courts" which deny injured patients the right to a trial by jury or full compensation for injuries caused by medical negligence. ABA policy has long endorsed the use of alternatives to litigation for resolution of medical malpractice disputes but only when such alternatives are entered into on a voluntary basis and only when they are entered into after a dispute has arisen.