They are being asked to decide, essentially, the standard of care, even while experts within the field of medicine disagree. Wild disparity in judgments comes from lack of knowledge, education, and training on the part of the fact finder (judge or jury).

This brings up another point. There is significant variation across the states with respect to expert witness laws, which also creates great unpredictability and unfairness.

In some states, for example, the expert must be of the same specialty as the defendant. In other states, that is not the case. This means that some emergency physicians can be held to the same standard as a specialist in neurology, cardiology, and so on.

Health courts would standardize these expert witness laws by requiring that the expert be in the same specialty as the defendant, leading to increased predictability, less forum shopping, and decreased overall health care system costs for the same reasons as previously stated (decreased malpractice inflation, decreased practice of defensive medicine and access to care, decreased costs of litigation).

These savings are not trivial. We are talking about potentially more than $100 billion per year.

Health courts could also improve patient safety. Ultimately, what we want are fewer medical errors and decreased harm to our patients.

Health courts would encourage reporting of medical errors by creating a system of reporting that is nonpunitive, confidential, and not subject to discovery in legal proceedings. This would encourage improvement in systems errors and allow for root-cause analysis to prevent future similar mistakes.

Why should there be specialized courts for health law?

First, there is precedent for creating specific courts for other areas of law that are complex, such as probate, bankruptcy, etc. The complexity of health law lends itself well to a specialized court with well-trained and experienced fact finders.

Second, there is a clear need to improve time to disposition, to reduce costs in the health care system as a whole, and to improve patient safety.

Creation of these courts is a potential solution that should be seriously considered as part of our health care reform and should be a part of the debate.

Every patient harmed by a medical error should be fairly compensated, while minimizing the costs of this litigation. And health care providers should feel safe to report errors in an attempt to improve systems and patient safety.