Health courts?

Abstract

This Article provides the first detailed critique of the Common Good/Harvard School of Public Health proposal to replace medical malpractice jury trials with adjudication before specialized health courts. I conclude that the modest benefits likely to be produced by the current health court proposal are more than matched by the risks of bias and overreaching that these courts would also present. Missing from the plan is the doctrinal change most likely to improve patient safety - hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a result, simply does not offer patients a sufficient quid pro quo to justify their loss of the right to a trial before a jury of their peers.