Health care reform has taken a major step forward in recent weeks. Fortunately for victims of medical malpractice, the latest bills coming out of the House and Senate do not include some of the most severe pieces of tort reform legislation being pushed by the insurance lobby, including caps on awards for “non-economic” damages, such as pain and suffering, in medical malpractice actions. As those states who have adopted such legislation have found, caps on non-economic damages have virtually no effect on insurance premiums, and hurt those victims of medical malpractice who are most vulnerable — children, the elderly, the poor. President Obama has stated his opposition to such caps.
Another tort reform measure that has received less press, but is equally onerous for victims of medical negligence, is the use of specialized “health courts” in medical negligence cases. Health courts are being touted by tort reformists as “specialized administrative courts” with a “local panel of experts” designed to handle medical medical malpractice disputes. Our medical malpractice lawyers, who have spent decades representing victims of medical negligence, have expressed our strong opposition to health courts.
A fundamental problem with health courts is determining who the “experts” are that will decide these cases. Proponents of tort reform want to take the case out of the hands of a judge or a jury, and place doctors and other health care professionals as the experts who will decide medical malpractice cases. It is hard to imagine a system more contrary to our civil justice system than having doctors decide all negligence actions brought against other doctors.
A larger fundamental problem with health courts is they remove a victim’s right to a trial by a jury of his or her peers — a right that is central to our system civil justice. In a jury trial, a panel of twelve citizens hears evidence and reaches a verdict, including the amount of money damages awarded if any. Conversely, with health courts, the panel of medical professionals determine whether malpractice occurred and, if so, compensation for victims of medical negligence is predetermined.
This system of compensating victims according to a predetermined schedule probably makes a lot of sense to the insurance companies who support such a system, since they routinely place a dollar figure all potential liabilities — i.e., failure to diagnose stage 4 melanoma is $X; prescription of the wrong antibiotic resulting in death of 50-year-old man is $Y, etc. However, this system conflicts with the fundamental right to civil justice.
Though a victim may be able to appeal to a higher health court, and ultimately to the civil court, the costs associated with multiple appeals in medical cases makes the appellate process unlikely from occurring. No solution has been proposed for dealing with the potential of abuse of authority or any kind of checks and balances on rulings by biased health professionals.
Health courts would be every bit as devastating as caps to victims of medical negligence. They eliminte the right to trial by a jury of one’s peers, and eliminate a victim’s ability to publicly hold a negligent party responsible, which in turn warns the health care profession as well as the general public about medical malpractice. Hopefully, personal injury lawyers and their clients will be able to stand up against the powerful insurance industry and prevent such legislation from gaining any ground.
To speak with one of Passen & Powell’s personal injury and medical malpractice attorneys, call us at (312) 527-4500 for a free consultation.