Health Courts RX – Renewable- Not So Far

The increasing specialization of the Bar, and as I noted in my last column, grudgingly, the Bench in this State and the nation will be noticed by any perceptive observer of the evolving professional and business world which is portrayed in the media online and off.

As might be expected, the private sector, including the business, or if you prefer the profession of law, which is driven more directly by economics, i.e. markets, has been well ahead of government particularly the Judiciary in specializing.  Witness the internal organization of large law firms including those whose operations span the world into “Practice Groups” as well as the specialization of the lawyers who head, as well as those new lawyers who are hired, by these firms.  Also notice the “spinning off” of “Boutique” specialized smaller law firms and the movement of entire “practice groups” from one law firm to another thereby shifting market shares of law practices from one firm to another.

The Judiciary has been reluctant and therefore slow to structurally and operationally address this change in the economics and environment of the practice of law and, for that matter, other areas of society and the economy.  This results from a number of factors including the personality profile of those men and women who seek and attain judicial office, the culture of the institution itself which includes the expectations of judges and lawyers, as well as litigants about the role of the Judiciary and the nature of dispute resolutions.  It also includes the cultural resistance to change in general in what has historically been a very conservative institution.

This conservatism is understandable since as the Maryland Business and Technology Court Task Force Report noted, “The role of the Judiciary is even more problematic since its role is by design more reactive than proactive.  Judges will be confronted with new and unique issues never before seen as a result of emerging technology and new business models.  Judicial decisions will have to look forward to the potential impact of technology, as well as back to established legal precedent.  The Judiciary can nevertheless take a leadership role in the development of new rules and enhancements in its functions to adopt to these new challenges.”

An appeal for the Judiciary to assume this “leadership role and enact new rules and enhancements in its functions to adapt to these new challenges” is what the proponents of more “specialized courts” evoke when they propose a new “Court”, “Division”, “Case Management Program”, etc to address their specific area of interest.

These advocates are usually lawyers and litigants, many times their clients, whose interests are in their opinion not being addressed by judges and their staff, efficiently, fairly and economically.  In their advocacy, they usually recruit and in many cases receive support from the academic community particularly the Law Schools, Medical Schools (including Schools of Public Health) and Business Schools.

Sometimes they’re right!  When they are their advocacy is effective and achieves positive results.  Witness the creation of the Family Divisions in the Circuit Courts of Maryland.  Notice the “Drug Courts”, the impetus for which is a professional consensus that the criminal justice system is not efficiently addressing the cycle of drugs and violence and the pathology of drug addictions which produces clearly unacceptable rates of recidivism for drug offenders.

Take note of the creation by Rule of Procedure Maryland Business and Technology Case Management Program which resulted from findings by a legislatively created Task Force in December, 2000 that “although differences in opinion existed regarding the necessity of a separate business and technology division…there exists a general consensus that if rules making Maryland’s courts more efficient can be drafted, such rules should be adopted”.  That finding was amplified by the further finding by the same Task Force “that the Judiciary of Maryland should forthrightly confront the fact that the trend  toward voluntary professional specialization in western societies is likely to continue into the twenty-first century…The Task Force believes that the inefficiencies and the reductions in the timeliness and quality of judicial decision-making that will inevitably result from advocates with specialized knowledge presenting cases to generalist trial judges with neither the knowledge nor the time to devote to these cases will grow to a level which is intolerable”.

It is in this spirit, and with this rhetoric, that the proponents of “Health Courts” present their idea for a “specialized judicial system” to handle “medical liability matters.”  The Proposal will be discussed in a Program which will be presented on Thursday, February 14, 2008 at the Joint Bench Bar Conference in Ocean City.  This writer will be participating as a Panelist by invitation of the Health Law Section of the Maryland State Bar Association.  The Program is entitled “A Cure For the Courts: Are Health Courts the RX for Maryland?”

The answer to that question so far from almost all corners of the State, save the medical care providers and professionals and the medical malpractice insurance companies has been a resounding NO.  In fact, to date as evidenced by the fact that legislative proposals which were  introduced and died in the last session of the Maryland General Assembly were opposed by the Maryland State Bar Association, the Judiciary of Maryland, ultimately the legislature itself and others, prospects for legislative approval are at best dim. Why?

The title to the bills creating a “Medical Liability Division Task Force” stated that it is the intent of the General Assembly that “medical liability matters should be treated efficiently, equitably and effectively in the judicial system.”  On that, I am sure we can all agree!  In fact, I can confidently state I can round up the votes for the legislation if that’s the extent of it.  The issue arises in the further description of the Program and the implicit justifications for the proposal to create by statute specialized “Health Courts” after “diagnosing judicial ills in handling heath related cases and what treatment, if any, should be prescribed”.

The Judiciary’s opposition is visceral, intense and fundamental.  First and foremost the Judiciary does not think it is “ill”.  That is the Judiciary does not believe its handling of heath related or “medical liability” cases is inefficient, unfair, or uneconomical.  Therefore, the Circuit Courts won’t need “treatment”. Even the dissatisfaction in some quarters with the results in some cases is not logically related in any way to the administration or trial of these cases by judges or their courts.

Indeed, most of the criticism that has been aired publicly by “Tort Reform” advocates has been directed to the lack of predictability of juries and their verdicts and to a lesser extent judges rulings.  The later, to the extent that it is identified as a real problem and not one imagined because a result is not what was desired, can be and is effectively and systematically proscribed by Judicial education which is ongoing.

The opposition of the Bar includes lawyers for both plaintiffs and health care providers although obviously not without exception. In fact, the exceptions in some cases are notable.  That opposition is also broad and intense.  It is based on a number of factors, not the least of which is economically driven.  These lawyers make their living litigating cases in the present system.  Having said that, the points raised in their opposition to specialized “Health Courts” go well beyond their economic and professional self-interest.

Those points are that the proposal for Specialized Health Courts are in essence on attack on the Maryland and Federal Constitutional right to a trial by jury.  The criticism of the “volatility” and “excessive” nature of jury verdicts and the economic arguments in favor of less money being allocated for compensation to “victims of medical negligence” are not tied logically to court structure and administration unless the “treatment” prescribed includes the surgical removal of currently constitutionally mandated juries from the courtroom in medical liability cases.

Other less drastic measures associated with these proposals can be, should be and in many cases are either being considered or are already operational.  They include increased judicial education, the greater use of court appointed neutral experts, enhanced ADR programs and perhaps even a Specialized Case Management Program if any evidence is found that judicial education by itself does not adequately ensure efficient management and trials in these cases.

The legislative opposition to these proposals is based on all of the reasons previously discussed plus the recognition that the Judiciary does not appreciate the separate legislative branch of government attempting to dictate how the independent judicial branch of government organizes itself internally.  Therefore, when it contemplates mandating changes in court structures, the legislative leadership is quite appropriately cautious particularly where there is no apparent consensus that a problem or as was suggested three years ago and about 15 years before that a “crisis” exists to justify it.

This institutional and political resistance to “Health Courts” is born of appropriate constitutional deference coupled with the opinion held by the leadership of the majority in the General Assembly that to the extent that a “medical malpractice crisis” existed in Maryland three years ago, it was effectively dealt with by the legislature in Special Session.  This “consensus” that no further legislative action is called for in this area at this time coupled with what is perceived widely as a faulty, if not dysfunctional, Health Claims Arbitration system enacted in response to a previous “crisis” 25 years earlier makes any proposal a hard sell for the foreseeable future particularly if its genesis is perceived to be ideologically and/or economically based.

The good news is we live in a great democracy and if the advocates of “Health Courts” think they have an idea that will make our civil judicial system better they can restructure, redraft and move it forward on its merits after a full and open discussion.  Hopefully that discussion will be carried on in Ocean City.  See you there.

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