Overlawyered recently linked a medmal-related article in The American, “Give Health Courts a Fair Shake” by Mark Crane. Crane writes,

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.

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Crane proposes “specialized health courts, where judges experienced in medicine would try cases without juries” in medical malpractice cases.

He makes a great case, in my opinion–pointing out (as you can see in the pull quote) that the difference between countries that have medical tribunals (such as in New Zealand, Sweden and Denmark) and the US is that they take months to settle a case whereas here it takes half a decade.

He also brings up the issue of predictability and precedent. Juries simply vote what they want without having to explain themselves. Judges, on the other hand, would write documents explaining their decisions and establishing standards. This is, by no means, his only argument, but it looks to me like a weighty one to consider.

There is a lot more to the piece and I recommend you read it for yourself. Frankly, I’m surprised the idea is not more popular.

Hat tip: Kevin MD