A Dose of Reality for Specialized Courts: Lessons from the VICP

Nora Freeman Engstrom

Stanford Law School

June 26, 2015

University of Pennsylvania Law Review, Vol. 163, p. 1631, 2015
Stanford Public Law Working Paper No. 2623756

The latest in a long line of reform proposals, health courts have been called “the best option for fixing our broken system of medical justice.” And, if health courts’ supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice litigation: They would offer faster compensation to far more people, while restoring faith in the reliability of legal decisionmaking. But these benefits are, as some leading supporters have acknowledged, “hoped for, but untested.” The question remains: Will health courts actually operate as effectively as
proponents now predict?

The best evidence to answer that question comes, I suggest, from the Vaccine Injury Compensation Program (VICP) — a Program that employs very similar procedures to handle very similar claims and that had, at its birth, a very similar ambition. Mining nearly three decades of previously untapped material concerning the VICP’s operation, this Article analyzes how an American compensation program that wrests jurisdiction from traditional courts has, in practice, fared. Findings are discouraging. Though the VICP and health courts share many of the same procedural innovations, those innovations, in the VICP context, have largely failed to expedite adjudications and rationalize compensation decisions. This fact carries significant implications for health courts, suggesting that they won’t operate nearly as effectively as their proponents now predict. More broadly, this study of an American no-fault regime, in action and over time, enriches — and at times complicates — current understanding of the prospects, promise, and “perceived virtues” of other specialized courts and alternative compensation mechanisms.

Number of Pages in PDF File: 87

Keywords: Vaccines, No-Fault, Alternative Compensation Systems, Health Courts, Specialized Courts, Replacement Regime

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Date posted: June 28, 2015  

Suggested Citation

Engstrom, Nora Freeman, A Dose of Reality for Specialized Courts: Lessons from the VICP (June 26, 2015). University of Pennsylvania Law Review, Vol. 163, p. 1631, 2015; Stanford Public Law Working Paper No. 2623756. Available at SSRN: https://ssrn.com/abstract=2623756

Contact Information

Nora Freeman Engstrom (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
6507368891 (Phone)

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