The Maryland State Bar Association annual meeting had a discussion group on a topic entitled, “A Cure for the Courts: Are Health Courts the Rx for Maryland?” The idea behind health courts is that specially trained judges would hear medical malpractice cases in Maryland, without juries, deciding damages based on “schedules” for non-economic damages.
There are scores of problems with health courts. The most obvious is that pesky little Seventh Amendment which guarantees a right to a jury. The guiding principle behind citizen juries is regular people deciding what constitutes acceptable behavior and what the damages should be for a person’s injuries. Because medical malpractice cases are frequently catastrophic injury cases, this is all the more reason why the community values matter so much in achieving a fair outcome. Specialized health court decisions would be made by government chosen “experts” that do not necessarily reflect the values of the local community with respect to either the issue of liability or damages. The framers of our Constitution feared these kinds of concerns, reflected in the Seventh Amendment right to a jury trial.
I understand this panel was sparsely attended. This is not surprising. There is virtually no interest in health courts in Maryland, not even from medical malpractice defense lawyers, who you might have thought would have attended this discussion in droves.
I do not think there is any inertia for health courts in Maryland. I’m not concerned that the Maryland State Bar Association would spend scarce resources on a topic that contravenes its own positions (the MSBA opposes initiatives that decrease “access to the court system”), nor do I mind that it is an issue for which I support the status quo. Certainly, two years ago it would have been a fair inquiry for the MSBA to raise issues related to changes in the medical malpractice damages caps, particularly in light of the political climate in Maryland. But I do think that it is not the MSBA’s place to essentially manufacture an issue out of thin air when there is zero groundswell from its members for the issue. My guess is this made it into program through the will of one person or a small number of people with authority positions at MSBA. I think the MSBA is doing a lot of wonderful things for Maryland lawyers, but I think the membership should create the issues for these discussion panels, as opposed to the tail wagging the dog.