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American Needs a New System of Medical Justice Philip K. Howard
Bulletin of the American College of Surgeons, May 2006 In the latest Bulletin of the American College of Surgeons, Common Good Chair Philip K. Howard relates that “[r]estoring reliability to health care justice … requires questioning the one assumption that, until recently, no one dared even discuss: the role of the jury.” In particular, Howard argues that when an issue “implicate[s] the functioning of society” – the proper standard of care in a medical malpractice case, for instance – it should be decided as a matter of law by a judge, and not by a jury. “The point is not that the judge is necessarily wiser than a jury but that the jury can’t make a ruling with binding effect.” Health courts, he argues, whose “hallmark” would be medically-trained, full-time judges making precedent-setting decisions about proper standards of care, would remedy the unreliability of our current system. He concludes his piece: “Creating special health courts is an ambitious undertaking, but it’s essential to strengthen one of the oldest and most basic principles of the American system of justice: that like cases be decided alike. There isn’t really a choice: the distrust that is eating away like a cancer at American health care cannot be cured until justice in health care is made reliable.”
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