Memo from the Editor

October 7, 2005

A med mal approach that just might work

One of the suggestions put forth to ease the malpractice crisis is a system of special medical courts. These courts would be staffed by judges who have the expertise to evaluate medical treatment. One of the chief proponents of such courts, attorney Philip K. Howard, explained to us in a 2003 interview that the judges would toss out claims that have no merit and award reasonable damages in appropriate cases.

Howard argues that judges with expertise in medicine would better apply standards of care-because they'd understand them-than judges or juries do today. And they would make both physicians and patients more trusting of each other and the legal system.

Opponents of the concept say there's too much danger of politicization, particularly in jurisdictions where judges are elected rather than appointed. That would remove the sought-after element of trust. They also worry that sitting on such a court would isolate the judges from the wider judicial perspective.

Judge Janis Graham Jack, who happens to be an RN and is married to a cardiologist, has been presiding for nearly two years over a multidistrict case involving more than 10,000 plaintiffs who allege they contracted silicosis from exposure to silica on the job. After pretrial proceedings that required every doctor to back up his diagnoses and saw many withdraw those diagnoses, Jack slapped a Houston law firm with monetary sanctions and, in what has been characterized as a blistering order, referred to the diagnoses variously as "fraudulent," "manufactured," and "implausible."

Citing CDC numbers that show a steady decline in silica-related cases, the judge noted that one would expect no more than 33 new cases of silicosis a year in Alabama and Mississippi together, yet in Mississippi alone, plaintiffs filed more than 20,000 silicosis claims between 2002 and 2004.

It could be argued that any judge would have noted those peculiarities, but no other judge has questioned the screening techniques used in the silicosis cases or in the similarly constructed asbestosis cases. (A significant number of the plaintiffs in the silicosis cases had also filed suit in asbestos litigation.) And no other judge has the healthcare background she has. As a nurse, Judge Jack knows what goes into a good diagnosis, and she knows what the likelihood of a sudden outbreak of a relatively rare condition is.

Judge Jack's perceptive handling of the silicosis case proves that medical expertise on the bench can have a dramatic impact on litigation. I see no reason why special medical courts shouldn't be one of the first things we try when we talk about tort reform.