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 the pesky little Seventh Amendment which guarantees a right to a jury. The guiding principle behind citizen juries is regular people deciding what is and what is not 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 the community values matter so much in achieving a fair outcome. Government-chose “experts” would make specialized health court decisions that do not reflect the values of the local community regarding either 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. 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 considering the political climate in Maryland.
The Maryland Daily Record reported this story today, which includes the following quote from my partner, Laura Zois, who was speaking on behalf of the Maryland Trial Lawyers Association: