A dose of reality for specialized courts: lessons from the VICP.

• Author: Engstrom, Nora Freeman
• Position: Vaccine Injury Compensation Program - Introduction through III. A Case of Institutional Deja Vu: Similarities Between Health Courts and the VICP B. A Few Differences 2. Liability Standard: No-Fault Versus "Avoidability", p. 1631-1673

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 wont 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.

INTRODUCTION I. THE ORIGINS AND STRUCTURE OF THE HEALTH COURT CONCEPT A. Origins: Medical Malpractice's Heavy Toll B. Reform Initiatives So Far C. Health Courts: The Basic II. THE ORIGINS AND STRUCTURE OF THE VICP A. Origins: Mounting Dissatisfaction and Litigation's Rising Tide B. The Legislative Solution: The National Childhood Vaccine Injury Act C. The VICP: The Basics III. A CASE OF INSTITUTIONAL DEJA VU: SIMILARITIES BETWEEN HEALTH COURTS AND THE VICP A. Similarities, Revisited B. A Few Differences. 1. The Respondent: Government Versus Physician or Hospital 2. Liability Standard: No-Fault Versus "Avoidability" 3. Remedy: Non-Exclusive Versus Exclusive 4. Attorneys' Fees: Fund Versus Petitioner IV. THE VICP IN ACTION: HEALTH COURTS ARE UNLIKELY TO RESOLVE CLAIMS AS PREDICTABLY OR AS QUICKLY AS PROPONENTS NOW SUGGEST A. Predictability Remains Elusive 1. The VICP Experience 2. Prospects for Health Courts? B. "Challenged to Settle Claims Quickly" 1. The VICP Experience 2. Prospects for Health Courts? C. Calculating Individualized Compensation Is Time Consuming and Challenging 1. The VICP Experience 2. Prospects for Health Courts? V. LARGER LESSONS: WHY DID THE VICP STUMBLE, AND WHAT DOES IT MEAN FOR THE FUTURE OF ALTERNATIVE COMPENSATION MECHANISMS? A. Certain Kinds of Causation Questions Are Insusceptible to Easy Resolution B. Decision Aids Are a Double-Edged Sword C. Boundary Claims Impose a Substantial Burden 1. Traditional Boundary Claims 2. Segregability D. Adversarialism Is Inescapable CONCLUSION INTRODUCTION

Health courts are the reform du jour. (1) Health court legislation--which would wrest medical malpractice cases from common law courts in favor of adjudication in specialized, dedicated tribunals--has been introduced in more than half a dozen states, (2) while bills to charter pilot projects have been introduced in both houses of Congress. (3) President Obama has expressed cautious support. (4) Health courts are, apparently, popular with the American public. (5) And, the health court concept has been endorsed by the Institute of Medicine (IOM), (6) the U.S. deficit commission, (7) leading editorial boards, (8) powerful non-profits (including the American Medical Association (AMA)9), distinguished think tanks (including the nonpartisan Brookings Institute, (10) the left-leaning Progressive Policy Institute, (11) and the right-leaning Heritage Foundation (12)), respected academics,13 and politicians from both sides of the proverbial aisle. (14)

Central to health courts' appeal is the contention that these tribunals--featuring specialized adjudicators, neutral experts, circumscribed damages, and a relaxed liability standard ("avoidability" rather than negligence)--will expedite medical malpractice adjudications, quell the adversarialism of dispute resolution, and provide consistent, rational rulings that would "restore faith in the reliability of medical justice." (15) Yet in more sober moments, health court advocates also acknowledge that these administrative benefits are not certain to materialize. (16)

Though it's rarely discussed, much rides on whether health courts will or won't achieve these lofty objectives. For one, health courts' ability to actually expedite, simplify, and rationalize compensation decisions is crucial to a fairness analysis, for if health courts are apt to resolve plaintiffs' claims in a speedy, streamlined, and reliable manner, all parties will derive a clear benefit from health courts' creation. On the other hand, if these "benefits" are illusory, health courts might start to look like a one-sided, rather than even-handed, reform. So, too, whether health courts will expedite and streamline adjudications is central to the cost question, for nearly all agree that far more injured patients will file claims in a health court system, as compared to the relative few who file claims currently. This means that if the cost per adjudication does not plummet, the aggregate price of claim resolution could soar. (17)

Finally, but less obviously, health courts' capacity to expedite, streamline, and rationalize compensation decisions is critical to resolving simmering constitutional questions. Constitutional questions loom large because if health courts are enacted, opponents are sure to challenge these tribunals. Opponents will allege that, in curtailing victims' compensation and denying them the right to a trial by jury, health courts violate victims' rights to due process and equal protection and run afoul of many states' open court, separation of powers, and right-to-jury-trial guarantees. (18) Evaluating these constitutional claims, many reviewing courts will presumably ask the same question they've asked and answered on other occasions: In abrogating victims' common law remedy, did the legislature accompany the abrogation with a sufficient tangible benefit? Was there, in other words, an adequate quid pro quo? (19) So far, those defending health courts' constitutionality have suggested that a tangible benefit justifying the withdrawal is "the system's promise to deliver faster, more reliable compensation decisions." (20) Whether that "promise" is or is not realistic thus takes on weighty constitutional significance.

So the answer to the question--Will health courts actually expedite, streamline, and rationalize compensation decisions?--is profoundly important. Yet while many have taken sides on the broader health court controversy, this question has received remarkably little attention. Beyond referencing the positive experiences of a few somewhat analogous systems overseas, (21) and the decidedly mixed experiences of neurological birth injury funds in Florida and Virginia, (22) health court champions have said little about why and how health courts will achieve these all-important objectives. And health courts' many detractors, while raising strenuous objections to health courts' constitutionality, (23) cost, (24) fairness, (25) independence, (26) stinginess, (27) and susceptibility to political capture, have mostly surrendered on this score. (28) Meanwhile, no one has carefully assessed this question using the best evidence currently available. What is that best evidence? I suggest it comes from the Vaccine Injury Compensation Program (VICP or Program), which has been quietly compensating those suffering from vaccine injury in the United States since October 1, 1988.

Adjudication within health courts mimics adjudication within the VICP along many relevant dimensions. In terms of substantive reach, both resolve medical claims, where technical evidence is common and causation questions loom large. (29) In terms of ambition, both health courts and the VICP seek to be generous, rather than tightfisted, with the articulated aim of providing adequate, though circumscribed, payments to a higher proportion of injured individuals. In terms of applicable law, both modify--and liberalize--the traditional tort standard of recovery. Health courts would apply an "avoidability" standard that straddles strict liability and negligence, while the VICP discards fault entirely. In terms of personnel, both dispense with lay juries and generalist judges in favor of adjudication by specialist triers of fact. In terms of procedure, both admit evidence pursuant to flexible and informal standards, encourage reliance on independent experts, and compel the publication of decisions. In terms of time to adjudication, both systems underscore the importance of speed. Health court advocates suggest that these tribunals would offer justice within a year, while the VICP imposes a hard statutory deadline requiring that compensation decisions "shall" be issued "not later than 240 days ... after the date the petition was filed." (30) In terms of decision aids, both health courts and the VICP feature a special and highly touted innovation: accelerated compensation events (ACEs) and the Vaccine Injury Table, respectively. Created by experts and periodically updated in light of scientific evidence, both ACEs and the Table identify injuries that are caused by inadequate healthcare or vaccines, respectively, and then fast-track qualifying claims for easy resolution. Finally, at the tail end of litigation, both health...