Why Health Courts are Unconstitutional

Abstract

Over the past few decades, there have been repeated proposals to remove medical malpractice claims from the civil justice system entirely. These claims, most of which are negligence claims, are traditionally brought in state courts and appear before a jury. The proposals typically focus on removing the claims from the jury and creating alternate tribunals for adjudication. Often, vague promises that an alternative system will be more fair to plaintiffs and/or will provide more compensation accompany such proposals. This article examines current administrative compensation schemes and alternative tribunals, and exposes the important ways health courts would differ from them. These differences will make the health courts unconstitutional under most state constitutions.