1 See Common Good, An Urgent Call For Special Health Courts: America Needs A Reliable System Of Medical Justice (2005), available at http://commongood.org/assets/attachments/130.pdf.

2 Common Good: Learn More, http://commongood.org/learn.html (last visited Mar. 27, 2009).

3 See AMA, Our Mission, http://www.ama-assn.org/ama/pub/about-ama/ourmission.shtml (last visited Mar. 27, 2009).

4 See AMA, Health Court Principles (2007), available at http://www.amaassn.org/ama1/pub/upload/mm/378/healthcrt_principles.pdf [hereinafter Health Court Principles].

5 Lowering of the liability threshold standard is supported by Common Good, but is opposed by the AMA.

6 See Paul, J. Barringer III, A New Prescription For America's Medical Liability System, 9 J. Health Care L. & Pol’y 235, 244-49 (2006)Google Scholar (at the time of publication of his article, Mr. Barringer was general counsel to Common Good); Health Court Principles, supra note 4; Carmel Sileo, AMA Outlines Plan For Health Courts, Trial, Sept. 2007, 66, 66.

7 Health Court Principles, supra note 4.

8 See Kirk, B. Johnson et al., A Fault-Based Alternative for Resolving Medical Malpractice Claims, 42 Vand. L. Rev. 1365, 1401 (1989)Google Scholar.

9 See, e.g., Miranda, Fricker, Rational Authority and Social Power: Towards a Truly Social Epistemology, 98 Proceedings of the Aristotelian Society, New Series 159, 160, 168 (1998)Google Scholar (discussing theories of epistemology and rational authority).

10 Id.

11 See Clark A. Havighurst & Laurence R. Tancredi, “Medical Adversity Insurance” – A No- Fault Approach to Medical Malpractice and Quality Assurance, 51 Milbank Mem’l Fund Q. 125, 128-32 (1973) (noting the proposed system would be similar to the worker's compensation system's handling of workplace accidents and injuries).

12 See Johnson, supra note 8, at 1379.

13 See, e.g., Michelle M. Mello, Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms, 10 Robert Wood Johnson Foundation, Research Synthesis Report 7 (May 2006).

14 See Ronen Avraham, An Empirical Study of the Impact of Tort Reforms on Medical Malpractice Settlement Payments, 36 J. Legal Stud. S183 (2007).

15 The states are Alaska, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawai’i, Idaho, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin. See Nat’l Conf. of State Legislatures, State Medical Malpractice Tort Laws (2005), available at http://www.ncsl.org/print/standcomm/sclaw/tortchart04.pdf.

16 Id. (the fourteen states are Alabama, Arizona, Connecticut, Iowa, Kentucky, New Hampshire, New York, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Vermont); see Avraham, supra note 14.

17 See, e.g., Federal Tort Claims Act, 28 U.S.C. § 2678 (2006) (limiting contingency fees); Thomas, Kruppstadt, Determining Whether a Physician Is a United States Employee or an Independent Contractor in a Medical Malpractice Action Under the Federal Tort Claims Act, 47 Baylor L. Rev. 223, 224 (1995)Google Scholar (acknowledging that the Federal Tort Claims Act applies to medical malpractice claims in select circumstances, such as when the physician defendant is a federal government employee); Darshana Patel, Unequal Justice, the Hidden Impact of “Tort Reform,” 26 Multinational Monitor (2005), available at http://www.coalitionforpatientsrights.org/tort-reform.shtml (noting that the G.W. Bush Administration supported federal enactment of a $250,000 cap on damages for pain and suffering in medical malpractice litigation).

18 Philip K. Howard, The Wrong Approach to Gain Better Health Care, St. Petersburg Times, Nov. 10, 2002, available at http://commongood.org/learn-reading-cgpubs-opeds-11.html.

19 AEI-Brookings Joint Center and Common Good Event Transcript, Liability and Patient Health, Mar. 4, 2003, available at http://commongood.org/assets/attachments/56.pdf. Alex Azar, General Counsel of the U.S. Department of Health and Human Services, encouraged states to create specialized courts to handle malpractice claims with incentives that would compel parties to accept the rulings of “more reasoned” decision-makers. Id. at 5, 8.

20 See Common Good: Op-eds, http://commongood.org/learn-reading-cgpubsopeds.html (last visited Aug. 8, 2009) (containing Philip Howard's op-ed pieces on health courts).

21 E.g., Nancy Udell & David B. Kendall, Progressive Pol’y Inst., Health Courts: Fair and Reliable Justice for Injured Patients 9 (2005), available at http://www.ppionline.org/documents/healthcourts_0217.pdf.

22 See Randall R. Bovbjerg & Brian Raymond, Patient Safety, Just Compensation and Medical Liability Reform, Kaiser Permanente Inst. For Health Pol’y 18 (Jan. 2003) (stating lay jury and judges lack expertise and are too easily swayed by irrelevant factors in making liability determinations); Alan M. Mindlin, Opinions, Special Health Courts Could Heal State's Liability Costs, Detroit News, Mar. 2, 2006, at A13 (implying that lay judges and juries cannot handle complex medical or scientific liability issues).

23 E.g., Debra, Sydnor & Natalie, S. Whiteman, Special Malpractice Courts: The Next Bankruptcy Courts or Just a Diversion?, 23 Med. Mal. L. & Strategy 1 (2006)Google Scholar.

24 Emily Chow, Note, Health Courts: An Extreme Makeover of Medical Malpractice with Potentially Fatal Complications, 7 Yale J. Health Pol’y L. & Ethics 387, 391 (2007).

25 See, e.g., Common Good, Learn More, http://commongood.org/learn.html (last visited Aug. 7, 2009).

26 Those states are Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, and Virginia. Maryland: H.B. 779, 2007 Reg. Sess. (Md. 2007); S.B. 508, 2007 Reg. Sess. (Md. 2007); H.B. 48, 2007 Leg., 422nd Gen. Assem. (Md. 2007); H.B. 816, 2006 Leg., 421st Gen. Assem. (Md. 2006). Massachusetts: S.B. 686, 185th Gen. Ct. (Mass. 2007); S.B. 955, 185th Gen. Ct. (Mass. 2007). New Jersey: S.B. 671, 212th Leg., 1st Sess. (N.J. 2006); Assem. B. 721, 212th Leg., 1st Sess. (N.J. 2006). New York: S.B. 4149, 2007-08 Leg., 230th Sess. (N.Y. 2007); Assem. B. 8066A, 2007-2008 Leg., 230th Sess. (N.Y. 2007). Oregon: S.B. 655, 74th Leg. Assem., Reg. Sess. (Ore. 2007). Pennsylvania: S.B. 678, 2007 Gen. Assem., 2007 Sess. (Penn. 2007). Virginia: S.J. Res. 90, 2006 Reg. Sess. (Va. 2006); H.J. Res. 183, 2006 Reg. Sess. (Va. 2006).

27 See, e.g., Maryland: House Bill 48 – Jan. 19, 2007, Senate Bill 508 – Feb. 2, 2007, House Bill 779 – Feb. 9, 2007, House Bill 816 – Mar. 10, 2006; Massachusetts: Senate Bill 686 – 2007, Senate Bill 955 – 2007; New Jersey: Senate Bill 671 – 2006, Assembly Bill 721 – 2006; New York: Senate Bill 4149A – 2007, Assembly Bill 8066 – 2007; Oregon: Senate Bill 655 – 2007; Pennsylvania: Senate Bill 678 – 2007; Virginia: Senate Joint Resolution 90 – 2006, House Joint Resolution 183 – 2006; see also Health Court Principles, supra note 4, at 1- 2; Sileo, supra note 6, at 66 (discussing AMA health court proposal); Common Good, Model Medical Injury Court Act (2006), available at http://commongood.org/assets/attachments/Model_Medical_Injury_Court_Act_2-24-06.pdf [hereinafter Common Good Proposal].

28 See sources cited supra note 26. However, given the statistical evidence that physician defendants prevail in medical malpractice cases that proceed to verdict disproportionately compared to the win rate for defendants in tort cases in general, one must question who the “increased” fairness, equitableness, and reliability aims of health court proponents are meant to benefit. See infra Section IV.D.

29 Medical Liability Procedural Reform Act of 2005, H.R. 1546, 109th Cong., 1st Sess. (2005).

30 Fair and Reliable Medical Justice Act, S.B. 1337, 109th Cong., 1st Sess. (2005).

31 Id. §3(d).

32 Id. § 3(a).

33 Id. § 3(c)-(d).

34 See id. § 3(d)(4)(A)-(B).

35 Id. § 3(d)(4)(C).

36 Fair and Reliable Medical Justice Act, S.B. 1337, 109th Cong., 1st Sess. § 3(d)(4)(C) (2005).

37 Id.

38 See id.

39 Id. § (d)(4)(B).

40 Id.

41 See, e.g., Sydnor & Whitman, supra note 23, at 1.

42 Sydnor & Whiteman, supra note 23, at 1.

43 Fair and Reliable Medical Justice Act, S.B. 1337, 109th Cong., 1st Sess. § 3(d)(4)(D) (2005).

44 See Amy, Widman, Why Health Courts Are Unconstitutional, 27 Pace L. Rev. 55, 74, 81- 88 (2006)Google Scholar.

45 H.R. 5, 108th Cong. (2003).

46 The collateral source rule or doctrine prohibits admission of evidence that plaintiff's damages are or will be compensated in whole or in part by some source other than the damages awarded against the defendant. See, e.g., Wills v. Foster, 892 N.E.2d 1018, 1023 (Ill. 2008).

47 Id.

48 See AMA, supra note 3.

49 See Common Good, supra note 2.

50 See Health Court Principles, supra note 4; Sileo, supra note 6, at 66 (regarding AMA health court proposal); Common Good Proposal, supra note 27.

51 See AMA, 2008 Annual Report 30, available at http://www.amaassn.org/ama1/pub/upload/mm/37/2008-annual-report.pdf (reporting 236,000 physician members) and AMA, DoctorFinder, https://extapps.ama-assn.org/doctorfinder/home.jsp (last visited Feb. 25, 2010) (stating AMA has licensing information on virtually every U.S. doctor – over 814,000 doctors); AMA, Our Mission, http://www.ama-assn.org/ama/pub/aboutama/our-mission.shtml (last visited 8/7/09).

52 AMA, Our Mission, supra note 51.

53 AMA, Our Mission, supra note 51.

54 AMA, Our History, http://www.ama-assn.org/ama/pub/about-ama/our-history.shtml (last visited Aug. 7, 2009).

55 See, e.g., AMA, Practice Management, Medical Liability Reform, http://www.amaassn.org/ama/pub/advocacy/current-topics-advocacy/practice-management/medical-liabilityreform.shtml (last visited Aug. 7, 2009).

56 Common Good, supra note 2.

57 Common Good, supra note 2.

58 Common Good, supra note 2.

59 Common Good, supra note 2.

60 David, A. Hyman & Charles, Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?, 90 Cornell L. Rev. 893, 899 (2005)Google Scholar (stating that most tort “reforms” suggested by providers, professional associations, and lobbying groups are aimed at reducing malpractice insurance premium costs and have more to do with protecting provider and insurer self-interest than with increasing health care quality).

61 See Common Good Proposal, supra note 27, at 1.

62 Common Good Proposal, supra note 27, at 1.

63 Common Good Proposal, supra note 27, at 5-6.

64 See Paul, Mogin, Why Judges, Not Juries, Should Set Punitive Damages, 65 U. Chi. L. Rev. 179, 181-82 n. 14 (1998)Google Scholar (listing the forty-seven states whose constitutions guarantee a right to trial by jury in a civil case).

65 See, e.g., Widman, supra note 44, at 74, 81-88.

66 See Michelle M. Mello et al., “Health Courts” and Accountability for Patient Safety, 84 Milbank Q. 459, 467 (2006).

67 See, e.g., Sorrell v. Thevenir, 633 N.E.2d 504, 510 (Ohio 1994) (finding that the right to a jury trial derives from the Magna Charta, and is reasserted in both the United States Constitution and the Constitution of the State of Ohio) (citations omitted); Etheridge v. Med. Ctr. Hosps., 376 S.E.2d 525, 529 (Va. 1989) (holding that the assessment of damages is a jury fact-finding function, and that legislatively created damage caps are to be applied only after the jury has completed this fact-finding function).

68 Salem Coll. & Acad., Inc. v. Employment Div., 695 P.2d 25, 30 (Or. 1985); see also Franklin v. Mazda Motor Corp., 704 F. Supp. 1325, 1334-35 (D. Md. 1989) (holding Maryland state constitutional provision regarding right to jury trial provides the same protection as that of the Seventh Amendment).

69 See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51 (1989) (citing Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442, 458 (1977)) (finding that Congress may not deny jury trials in wholly private tort actions—e.g., medical malpractice claims).

70 See, e.g., Philip Howard, Dedicated Health Courts Can End Malpractice Crisis, The (Wash.) Examiner, May 11, 2007, available at http://www.examiner.com/printa-722155~Philip_K._Howard:_Dedicated_health_care_courts_can_end_malpractice_crisis.html (stating that one of the largest drivers of the medical malpractice crisis is, as a group, medical malpractice jury trials).

71 See Deborah, L. Rhode, Frivolous Litigation and Civil Justice Reform: Miscasting the Problem, Recasting the Solution, 54 Duke L.J. 447, 463 (2004)Google Scholar.

72 See David, M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024, 2032 (2006)Google Scholar (finding that the “vast majority” of resources go toward “resolving and paying claims that involve errors”).

73 Id. at 2026, 2028.

74 See Thomas H. Cohen, Medical Malpractice Trials and Verdicts in Large Counties, 2001 1 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/mmtvlc01.pdf; see also Studdert, supra note 72, at 2031 (concluding that the outcome of seventy-five percent of medical malpractice claims examined were consistent with the merits).

75 See Chow, supra note 24, at 391.

76 Chow, supra note 24, at 391.

77 U.S. Congress Off. of Tech. Assessment, Impact of Legal Reforms on Medical Malpractice Costs 65 (Sept. 1993) (finding that “caps on damages are effective in lowering payment per paid claim and, hence, malpractice insurance subsidies”).

78 William A. Sage, Medical Malpractice Insurance and the Emperor's Clothes, 54 DePaul L. Rev. 463, 470 (2005).

79 Congressional Budget Office, Limiting Tort Liability For Medical Malpractice, Economic & Budget Issue Brief, 1, 3 (2004).

80 Sage, supra note Error! Bookmark not defined., at 480, citing Tom, Baker, Insuring Liability Risks, 29 Geneva Papers on Risk & Ins. 128, 130-39 (2004)Google Scholar.

81 Chow, supra note 24, at 416, quoting William, A. Sage, Medical Malpractice Insurance and the Emperor's Clothes, 54 DePaul L. Rev. 463, 481 (2005)Google Scholar.

82 See Chow, supra note 24, at 416; Paul, J. Barringer III, A New Prescription for America's Medical Liability System, 9 J. Health Care L. & Pol’y 235, 237-38 (2006)Google Scholar.

83 See Chow, supra note 24, at 416, citing William, A. Sage, Medical Malpractice Insurance and the Emperor's Clothes, 54 DePaul L. Rev. 463, 481 (2005)Google Scholar.

84 Chow, supra note 24, at 417.

85 Gerard F. Anderson et al., It's the Prices, Stupid: Why the United States Is So Different from Other Countries, 22 Health Aff. 89, 90, 101-03 (2003).

86 Cong. Budget Off., supra note 79, at 6.

87 Cong. Budget Off., supra note 79, at 6.

88 See Tom, Baker, Reconsidering the Harvard Medical Practice Study Conclusions about the Validity of Medical Malpractice Claims, 33 J.L. Med. & Ethics 501, 508 (2005)Google Scholar (concluding that actual negligence matters a great deal in the outcome of medical malpractice litigation); Tom Baker, The Medical Malpractice Myth 110 (2005) (stating that the current “legal system does a remarkably good job at weeding out weaker claims”).

89 See U.S. G.A.O., Medical Malpractice: Characteristics of Claims Closed in 1984, H.R. Doc. No. 87-55, at 37, 82 (1987) (basing this figure on a nationwide sample of claims closed in 1984).

90 Avraham, supra note 14, at S187.

91 Avraham, supra note 14, at S187.

92 Periodic-payments are a system by which a defendant may pay a damages award to a prevailing plaintiff over months or years, rather than as a one-time, lump sum payment. Such a system is disadvantageous to a plaintiff's financial concerns.

93 Avraham, supra note 14, at S210.

94 Avraham, supra note 14, at S184; Center for Public Integrity, Lobbywatch: Top 100 Companies and Organizations http://www.publicintegrity.org/lobby/top.aspx?act=topcompanies (follow “Launch this Project” hyperlink; then follow “Top Companies and Organizations” hyperlink) (last visited Mar. 27, 2009).

95 Avraham, supra note 14, at S186.

96 Avraham, supra note 14, at S186, S190 (the examination included analysis of the results from over 105,000 medical malpractice cases reported in the National Practitioner Data Bank (NPDB) with court awards and settlements, from all 50 states, the District of Columbia, and the U.S. territories, for injuries occurring between 1991 and 1998 in which payments were made for damages for injuries more severe than minor injuries).

97 Avraham, supra note 14, at S189.

98 Avraham, supra note 14, at S186, S188, S206-07, S209 (examining a number of studies on tort reform, including analysis of the fewer than thirteen empirical studies on tort reform and medical malpractice payments done in over thirty years).

99 Avraham, supra note 14, at S217-21.

100 Chow, supra note 24, at 398.

101 Carl, W. Tobias, Health Courts: Panacea or Palliative?, 40 U. Rich. L. Rev. 49, 51 (2005)Google Scholar.

102 Id. at 51.

103 Id. at 51.

104 Dimick v. Schiedt, 293 U.S. 474, 486 (1935).

105 Howard, Alan Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional “Quid Pro Quo” Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143, 171 (1981)Google Scholar (noting that the collusive scheme has been justified under a “public benefit” rubric).

106 Philip K. Howard, Op-Ed., Strong Medicine, Wall St. J., Jan. 6, 2007, at A6.

107 Id.

108 See Barringer, supra note 6, at 246-47; Health Court Principles, supra note 4.

109 Howard, supra note 106, at A6.

110 Neil, Vidmar & Shari, Seidman Diamond, Juries and Expert Evidence, 66 Brook. L. Rev. 1121, 1174 (2001)Google Scholar.

111 Id.

112 Id.

113 Id. at 1175-76.

114 See Neil, Vidmar, Are Juries Competent to Decide Liability in Tort Cases Involving Scientific/Medical Issues? Some Data From Medical Malpractice, 43 Emory L.J. 885, 896-903 (1994)Google Scholar.

115 Id. at 902-03 (noting that that jurors are not naïve about experts and their loyalties, nor are jurors easily misled).

116 Paula, L. Hannaford et al., Permitting Jury Discussions During Trial: Impact of the Arizona Reform, 24 Law & Hum. Behav. 359, 373 (2000)Google Scholar.

117 Richard, C. Waites & David, A. Giles, Are Jurors Equipped to Decide the Outcome of Complex Cases?, 29 Am. J. Trial Advoc. 19, 23-24 (2005)Google Scholar (citing Harry Kalven, Jr. & Hans Zeisel, The American Jury 3 (1966)).

118 Michael S. Jacobs, Testing the Assumptions Underlying the Debate About Scientific Evidence: A Closer Look at Juror “Incompetence” and Scientific “Objectivity,” 25 Conn. L. Rev. 1083, 1096 (1993) (citing A.B.A. Special Comm’n of Jury Comprehension, Litig. Sec., Jury Comprehension in Complex Cases 25 (1989)).

119 Vidmar, supra note 114, at 903-06.

120 See Vidmar & Diamond, supra note 110, at 1174-75.

121 Studdert, supra note 72, at 2030 tbl.2 (noting that the 30% disagreement rate does not mean that juries wrongly decided the verdicts in those cases).

122 Philip G. Peters, Jr., Doctors & Juries, 105 Mich. L. Rev. 1453, 1453 (May 2007).

123 See Neil, Vidmar, Empirical Evidence on the Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases, 43 Duke L.J. 217, 224-41 (1993)Google Scholar.

124 Peters, supra note 122, at 1453.

125 Peters, supra note 122, at 1453.

126 See Studdert, supra note 72, at 2027; see also Medical Malpractice Statistics, supra note 74 (noting that the win rate for defendants in medical malpractice lawsuits tried to verdict is twice the win rate for defendants in all tort actions proceeding through trial).

127 See Peters, supra note 122 at 1476.

128 See Studdert, supra note 72, at 2026; see also Medical Malpractice Statistics, supra note 74 (noting that the win rate for defendants in medical malpractice lawsuits tried to verdict is twice the win rate for defendants in all tort actions proceeding through trial).

129 See, e.g., Common Good, Design of a “Health Courts” System Demonstration 8, available at http://commongood.org/assets/attachments/Health_Court_Proposal_Outline.pdf (last visited Aug. 8, 2009) [hereinafter Common Good Demonstration].

130 Id.

131 See, e.g., Erin, Ann O’Hara & Douglas, Yarn, On Apology and Consilience, 77 Wash. L. Rev. 1121, 1186 (2002)Google Scholar.

132 See, e.g., Erin, Ann O’Hara, Apology and Thick Trust: What Spouse Abusers and Negligent Doctors Might Have In Common, 79 Chi.-Kent L. Rev. 1055, 1076-77 (2004)Google Scholar; Catherine T. Struve, Expertise in Medical Malpractice Litigation: Special Courts, Screening Panels, and Other Options, Pew Charitable Trusts: The Project on Medical Liability in Pennsylvania 1, 63-64 (2003), available at http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Medical_liability/medical_malpractice_101603.pdf.

133 Mello, supra note 66, at 470.

134 See David M. Studdert et al., Can the United States Afford a “No-Fault” System of Compensation for Medical Injury?, 60 Law & Contem. Probs. 1, 26-27, 28 tbl.3, 30 (1997); Randall R. Bovbjerg et al., Obstetrics and Malpractice: Evidence on the Performance of a Selective No-Fault System, 265 JAMA 2836, 2836 (1991) (concluding that “avoidable classes of events” schedules would provide for lower payments than currently available for certain medical injuries); Common Good Demonstration, supra note 129, at 11; Karen E. Jenni & George Loewenstein, Explaining the “Identifiable Victim Effect,” 14 J. Risk & Uncertainty 235, 236 (1997).

135 See Common Good Demonstration, supra note 129, at 3.

136 See Common Good Demonstration, supra note 129, at 5; Press Release, Harvard School of Public Health, Harvard School of Public Health and Common Good to Develop New Medical Injury Compensation System (Jan. 10, 2005), available at http://www.hsph.harvard.edu/news/press-releases/archives/2005-releases/press001102005a.html; see also Laurence R. Tancredi & Randall R. Bovbjerg, Creating Outcomes-Based Systems for Quality and Malpractice Reform: Methodology of Accelerated Compensation Events (ACEs), 70 Milbank Mem’l Fund Q. 183, 185 (1992); Randall, R. Bovbjerg & Laurence, R. Tancredi, Liability Reform Should Make Patients Safer: “Avoidable Classes of Events” Are a Key Improvement, 33 J.L. Med. & Ethics 478, 485 (2005)Google Scholar.

137 Common Good Demonstration, supra note 129, at 9.

138 Common Good Demonstration, supra note 129, at 9.

139 See Struve, supra note 132, at 73.

140 See Nancy Udell & David B. Kendall, Progressive Policy Institute, Health Courts: Fair and Reliable Justice for Injured Patients, Progressive Pol’y Inst. Rep. 9 (2005), available at http://www.ppionline.org/documents/healthcourts_0217.pdf.

141 See Common Good & Harvard School of Public Health, Model Medical Injury Court Act 2, 6-7 & 20 (2006), http://commongood.org/assets/attachments/Model_Medical_Injury_Court_Act_2-24-06.pdf; see also Arie W. Kruglanski et al., Says Who?: Epistemic Authority Effects In Social Judgment, in 37 Adv. in Experimental Social Psychology 345, 369 (2005) (noting the effect of epistemic authority in determining subsequent actions of the trained individuals in such situations).

142 The author of this article, as a practicing physician for more than twenty years, has personally experienced the empathy-decreasing, anti-patient attitude development common to the medical training and practice experiences in the United States. On many occasions he has witnessed the “us against them” attitude of fellow physicians toward patients. With great conscious personal effort the author counters this psychosocial training. It is, however, difficult to constantly maintain a position of empathy while practicing medicine, where time pressures, patient demands and antagonism, insurance and payment issues, and medico-legal issues are continually looming.

143 Johanna Shapiro, Walking a Mile in Their Patients’ Shoes: Empathy and Othering in Medical Students’ Education, 3 PHIL. ETHICS, & HUMAN. MED. 10, 11 (2008); see also Lisa, M. Bellini et al., Variation of Mood and Empathy During Internship, 287 JAMA 3143, 3145-46 (2002)Google Scholar (finding increase in anger and depression and a decrease in empathy among internal medicine residents); Mohammadreza, Hojat et al., An Empirical Study of Decline in Empathy in Medical School, 38 MED. EDUC. 934, 939 (2004)Google Scholar (finding empathy may be altered by medical school experience); Lisa, M. Bellini & Judy, A. Shea, Mood Change and Empathy Decline Persist During Three Years of Internal Medicine Training, 80 ACAD. MED. 164, 166-67 (2005)Google Scholar (finding lowered empathy continues after first year of residency despite mood stabilization).

144 Shapiro, supra note 143, at 11; L.N. Dyrbye et al., Medical Student Distress: Causes, Consequences, and Proposed Solutions, 80 MAYO CLINIC PROC. 1613, 1613-14 (2005); see also Carol, Klose Smith et al., Depression, Anxiety, and Perceived Hassles Among Entering Medical Students, 12 PSYCHOL. HEALTH MED. 31, 36 (2007)Google Scholar (suggesting stress from medical school coursework may contribute to students’ anxiety and depression); H.J. Humphrey et al., Promoting an Environment of Professionalism: The University of Chicago “Roadmap”, 82 ACAD. MED. 1098, 1100 (2007) (outlining preclinical program designed to counter erosion of ethical behavior among medical students).

145 Shapiro, supra note 143, at 11; see also E.R., Marcus, Empathy, Humanism, and the Professionalism of Medical Education, 74 ACAD. MED. 1211, 1213 (1999)Google Scholar (discussing upperlevel medical student self-identification with physicians); D. Wear & B. Castellani, The Development of Professionalism: Curriculum Matters, 75 ACAD. MED. 602 (2000) (proposing reforms to the current medical school curriculum); see generally S. DasGupta, Reading Bodies, Writing Bodies: Self-reflection and Cultural Criticism in a Narrative Medicine Curriculum, 22 LITERATURE & MED. 241 (2003) (relating impact of seminar exploring personal illness narratives on female medical students).

146 Paul, Haidet et al., Medical Student Attitudes Toward the Doctor-Patient Relationship, 36 Med. Educ. 568, 568, 571 (2002)Google Scholar.

147 Id. at 571-72; E. Krupat, The Practice Orientations of Doctors and Patients: The Effect of Doctor-Patient Congruence on Satisfaction, 39 Patient Educ. & Counseling 49, 56-57(1999).

148 Haidet, supra note 146, at 572.

149 Jack Coulehan, Viewpoint, Today's Professionalism: Engaging the Mind but Not the Heart, 80 Acad. Med. 892, 897 (2005).

150 Id. at 894.

151 Id.

152 See, e.g., Bellini & Shea, supra note 143, at 166-67.

153 Delese, Wear et al., Making Fun of Patients: Medical Students’ Perceptions and Use of Derogatory and Cynical Humor in Clinical Settings, 81 Acad. Med. 454, 454-57 (2006)Google Scholar.

154 Id.

155 Jonathan, Todres, Toward Healing and Restoration for All: Reframing Medical Malpractice Reform, 39 Conn. L. Rev. 667, 689 (2006)Google Scholar.

156 William Gunnar, Is There an Acceptable Answer to Rising Medical Malpractice Premiums?, 13 Annals Health L. 465, 476 (2004); see also Allen K. Hutkin, Resolving the Medical Malpractice Crisis: Alternatives to Litigation, 4 J. L. & Health 21, 25 (1989/1990).

157 Todres, supra note 155, at 690.

158 Todres, supra note 155, at 690; see also Lorraine E. Ferris, Using Therapeutic Jurisprudence and Preventive Law To Examine Disputants’ Best Interests in Mediating Cases About Physicians’ Practices: A Guide for Medical Regulators, 23 Med. & L. 183, 183 (2004) (noting that “[t]he patient-doctor relationship relies on mutual respect, on trust in the physician's technical and psychosocial competence, and on the patient's confidence that appropriate care is being given”).

159 Todres, supra note 155, at 691; see also Catherine, T. Struve, Doctors, the Adversary System, and Procedural Reform in Medical Liability Litigation, 72 Fordham L. Rev. 943, 995 (2004)Google Scholar (“[P]hysicians may be reluctant to hold their colleagues liable for errors in judgment that do not rise to the level of gross neglect”); Marcus, supra note 145, at 1215.

160 Todres, supra note 155, at 691.

161 Todres, supra note 155, at 691.

162 Paul C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation 125 (1993).

163 See Struve, supra note 159, at 952-55.

164 Struve, supra note 159, at 954-55.

165 Struve, supra note 159, at 954-55.

166 Struve, supra note 159, at 954-55. In more than twenty years of experience as a physician, the author of the current article has heard these types of statements and doctrines from fellow physicians and physician organizations on many occasions.

167 Thomas P. Hagen, “This May Sting A Little” – A Solution to the Medical Malpractice Crisis Requires Insurers, Doctors, Patients, and Lawyers To Take Their Medicine, 26 Suffolk U. L. Rev. 147, 165 (1992) (citing Laurie Garrett, Care Bows to Costs, Newsday, Jul. 12, 1988, at 1 (discussing elements of medical malpractice crisis)).

168 See Dorothy Allison, Physician Retaliation: Can the Physician-Patient Relationship Be Protected?, 94 Dick. L. Rev. 965, 994 (1990) (“The traditional physician-patient relationship is no longer one of trust and confidence. The specter of a potential lawsuit has caused doctors to become more cautious and suspicious of patient motives. Doctors have distanced themselves from patients, and patients, in turn, have become more distrustful of doctors. This vicious cycle creates only more conflict between doctors and patients”).

169 Allan, S. Berger, Arrogance Among Physicians, 77 Acad. Med. 145, 146 (2002)Google Scholar.

170 Id.

171 See Robyn S. Shapiro et al., A Survey of Sued and Nonsued Physicians and Suing Patients, 149 Archives Internal Med. 2190, 2193 (1989).

172 See id.

173 See Common Good: Restoring Common Sense to America, http://commongood.org/index.html (last visited Aug. 7, 2009).

174 Philip K. Howard, The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom 24-25 (2001).

175 Keith DeRose, What Is Epistemology? A Brief Introduction to the Topic, available at http://pantheon.yale.edu/~kd47/What-Is-Epistemology.htm (last visited Mar. 30, 2009).

176 Joseph Cruz, Epistemology, in 2 Encyclopedia of Cognitive Science 23, 23 (Lynn Nadel ed., 2003). Epistemic internalists believe that persons are able to “make assessments of their own beliefs to determine whether they are epistemically positive or justified.” Id. at 26. Epistemic externalists believe that persons may not be able to do so. See id. An exploration of the methods of epistemology is beyond the scope of this article. The arguments applied in this article to the structure of health courts, however, are consistent with either an internalist or externalist viewpoint.

177 DeRose, supra note 175.

178 Arie, W. Kruglanski et al., Says Who?: Epistemic Authority Effects In Social Judgment, 37 Adv. Experimental Soc. Psychol. 345, 346 (2005)Google Scholar.

179 Id. at 369.

180 Id.

181 Id.

182 Steven Shapin, A Social History of Truth – Civility and Science in Seventeenth-Century England xxv (1994).

183 Fricker, supra note 9, at 159.

184 Robert, Audi, The Place of Testimony in the Fabric of Knowledge and Justification, 34 AM. PHIL. Q. 405, 405 (1997)Google Scholar.

185 Id.

186 Id. at 405-06.

187 Fricker, supra note 9, at 160.

188 Fricker, supra note 9, at 162-63.

189 Fricker, supra note 9, at 163.

190 Fricker, supra note 9, at 166-67.

191 See Fricker, supra note 9, at 167.

192 Fricker, supra note 9, at 164.

193 Stewart Cohen, Structure and Connection: Comments on Sosa's Epistemology, in Ernest Sosa and His Critics 17, 18 (John Greco ed., 2004). Cohen's and Sosa's analyses refer to our sensory faculties, but are equally applicable to our evaluation and potential acceptance as reliable of testimonial knowledge from sources such as expert witnesses.

194 See id. (discussing Sosa's analysis).

195 Id. at 20.

196 Id.

197 Robert Audi, The Epistemic Authority of Testimony and the Ethics of Belief, in God and the Ethics of Belief: New Essays in Philosophy of Religion 175, 178 (Andrew Dole & Andrew Chignell eds., 2005) (“Testimony” as utilized by Audi refers to assertions to others regarding beliefs, and includes attestations as disparate as casual comment, religious testimony, and formal court testimony – such as that of medical experts.).

198 Id. at 179 (for example, if A tells B what time it is, B's belief that A has delivered reliable information as to the time of day relies upon both the perception that A has informed B of the time and a trust by B that A has had access to some non-attested source of knowledge as to the time).

199 Id. at 180 (“Whereas I need to know that p in order for someone else to know that p solely on the basis of my attesting to it, I do not need any justification for believing p in order for my testimony to provide others with ample justification for believing it.”).

200 Even in situations where conclusions must be reached that actual medical negligence occurred, it can be expected that testimony from the court-appointed medical expert will minimize the extent or severity of such negligence, and therefore minimize the amount of plaintiffs’ recovery.

201 Sanford, C. Goldberg, Testimony As Evidence, 78 Philososophica 29, 30 (2006)Google Scholar.

Or at least no other expert opinion that is provided the same epistemic authority or weight as that of the court-appointed expert. See Section III, supra (In some health court models, at the discretion of the court parties may be permitted to retain their own medical experts in a particular malpractice lawsuit. The court has no obligation to hear testimony from the party experts, or to consider such testimony on a par with the opinion of the courtappointed medical expert.).

203 See, e.g., Common Good Proposal, supra note 27.

204 See generally Health Court Principles, supra note 4 (describing selection procedures); Sileo, supra note 6, at 66.

205 See Common Good Proposal, supra note 27, at 6 (stating judges will receive “an overview of medical and legal issues”).

206 Widman, supra note 44 at 59 (“Who are the experts and what are the procedures by which they are chosen? It is not clear that these details have been examined as closely as they must; at this point the most anyone has proposed is that experts be ‘neutral’ and commissioned by the court.”).

207 E. Donald Elliot et al., Administrative “Health Courts” for Medical Injury Claims: The Federal Constitutional Issues, 33 J. Health, Politics, Pol’y & L. 761, 763 (2008) (noting that “[c]entral to the proposed new federal health courts system would be specialized administrative tribunals that use expert judges and neutral expert witnesses in place of juries to award compensation in cases in which injuries are claimed as a result of errors or omissions in medical treatment … .”) (citing Common Good, An Urgent Call for Special Health Courts, http://www.cgood.org/brochure-hcare.html (last visited Jan. 31, 2008)); see also Francine A. Hochberg, The Injustice of Health Courts, Trial, May 2008, 42, 45 (May 2008).

208 See Hochberg, supra note 207, at 46.

209 Id. at 46 (warning that “[h]ealth courts risk extreme bias against injured claimants in favor of the health care and insurance industries … .”).

210 See, e.g., Common Good Proposal, supra note 27, at 2, 5-6 (proposing judicial panels in lieu of fact-finding by juries).

211 Common Good Proposal, supra note 27, at 6.

212 See, e.g., B. Kevin Hargadon, Transference: A Student-Teacher Interaction, 74 Sch. Rev. 446, 446-47 (1966).

213 See Widman, supra note 44, at 58 (noting that a common feature of health court proposals as “fleshed out by Common Good, the Progressive Policy Institute, and researchers at the Harvard School of Public Health” includes “specialized judges with an expertise in health care”); Tobias, supra note 101, at 50 (“Central to this idea [of health courts] are judges, who possess specialized training in the medical malpractice issues which they would confront.”).

214 Health Court Principles, supra note 4.

215 Tobias, supra note 101, at 50 (“The judges would define and construe the relevant standards of care in malpractice litigation by hearing the testimony of neutral experts … whom the judges would examine in individual cases, thus eliminating the purportedly unreliable and costly phenomenon of ‘dueling experts.’”).

216 For example, the ASTAR Center is a consortium the Supreme Court of Ohio, the Court of Appeals of Maryland, the Supreme Court of Illinois, and the Supreme Court of Washington. See Science In Your Courtroom, http://www.einshac.org/schienceInCourtroom.htm (last visited Mar. 27, 2009); see also Claudia Dreifus, Biologist Teaches U.S. Judges About Genetics, Int’l Herald Trib., July 1, 2008, available at http://www.nytimes.com/2008/07/01/health/01iht-01conv.14124462.html?scp=3&sq=Biologist%20Teaches%20U.S.%20Judges%20About%20Genetics&st=cse. ASTAR concerns itself with judges’ abilities to fulfill their gatekeeper roles regarding evidence, scientific evidence in particular. 2006 National Judges’ Science School, http://www.einshac.org/scienceSchool.htm (last visited Mar. 27, 2009). Thirty-nine jurisdictions are ASTAR members. Science in Your Courtroom, http://www.einshac.org/schienceInCourtroom.htm (last visited Feb. 25, 2010). As of 2006 forty-three judges were ASTAR fellows, and at least seven judges were honorary fellows. 2006 National Judges’ Science School, http://www.einshac.org/scienceSchool.htm (last visited Mar. 27, 2009). The ASTAR Center is a Congressionally-mandated program, theoretically working to prepare the judicial system for the impact of the human genome project. Id.; see also “James Evans [is] a physician and molecular biologist [who] teaches genetics …” Dreifus, supra. He spends weekends teaching state and federal judges about genetics, under the auspices of the ASTAR Center. Id. He thinks of himself “as a science teacher instructing extremely smart and distinguished adults in science fundamentals.” Id.

Evans’ influence over his students’ scientific knowledge and attitudes is tremendous. We are all influenced by our teachers. The more we identify with them positively, the more we are likely to think like them. The line between presenting objective facts and providing influence of personal professional bias is all too thin. In the battle of the experts, where some judges mentioned to Evans they worry about being “snookered,” there is at least the opportunity for the trier of fact, under the courts instruction and guidance, to hear/see differing points of view on the medical issues at hand, and decide who wins. With health courts, there is only one point of view, heavily influenced by the judges’ medical teachers, and the expert selected to advise the judge.

217 See Health Court Principles, supra note 4; see also Common Good Proposal, supra note 27; Sileo, supra note 6, at 66.

218 See Health Court Principles, supra note 4; see also Common Good Proposal, supra note 27; Sileo, supra note 6, at 66.

219 Struve, supra note 159, at 995.

220 Struve, supra note 159, at 995.

221 See Tim Cramm et al., Ascertaining Customary Care in Malpractice Cases: Asking Those Who Know, 37 Wake Forest L. Rev. 699, 726 (2002) (advocating the use of “surveys of a relevant population of physicians to determine customary … appropriate or reasonable … care”); Mark, A. Hall et al., Measuring Medical Practice Patterns: Sources of Evidence from Health Services Research, 37 Wake Forest L. Rev. 779, 779 (2002)Google Scholar (discussing “sources of evidence from the field of health services research that might be used to establish the standard of care in medical malpractice cases”); William, Meadow & Cass, R. Sunstein, Statistics, Not Experts, 51 Duke L.J. 629, 631 (2001)Google Scholar.

222 Struve, supra note 159, at 995.

223 Struve, supra note 159, at 995, citing Ronald, L. Goldman, The Reliability of Peer Assessments of Quality of Care, 267 JAMA 958, 958 (1992)Google Scholar.

224 See Vidmar & Diamond, supra note 110, at 1174-75.

225 See Jones v. Dettro, 720 N.E.2d 343, 346-48 (Ill. App. 1999).

226 Id. at 346-48 (citations omitted).

227 Id.

228 See Bowman v. Kalm, 179 P.3d 754, 756 (Utah 2008) (quoting Fredrickson v. Maw, P.2d 772, 773 (Utah 1951)).

229 Dettro, 720 N.E.2d at 346-48.

230 Bowman, 179 P.3d at 755-56 (citing Anderson v. Nixon, 139 P.2d 216, 220 (Utah 1943)).

231 See AMA Code of Medical Ethics, Op. 9.07 (2004), available at http://www.amaassn.org/ama1/pub/upload/mm/Code_of_Med_Eth/opinion/opinion907.html (demonstrating the AMA recognizes that in medical malpractice cases medical experts are called upon to educate the jury and court on the appropriate standard of care in particular health care situations).