Monday, August 22, 2005

Malpractice Fix
President George W. Bush's proposal to cap pain and suffering awards at $250,000, which is currently stalled in Congress, would not solve these underlying problems. But the advocacy group Common Good--in conjunction with the Harvard School of Public Health--is taking a look at a different reform possibility: throwing the system out entirely, and replacing it with a new kind of special malpractice court.

Their model would replace juries composed of average citizens with an administrative panel presided over by judges with some medical expertise, and would replace the dueling expert witnesses paid by each side with ''neutral" experts paid by the court. Instead of rolling the dice in today's system, some injured patients could be automatically reimbursed for lost wages, medical costs, and additional fees without having to prove negligence.

Similar systems have been implemented in several countries, including Sweden and New Zealand. And it has already been discussed here in Massachusetts, where both houses of the state Legislature voted last November to clear the way for a commission to look into the feasibility of a medical malpractice court.
I am strongly in favor of a special malpractice court. The issues are so complex that I don't expect the judges or the juries to be able to understand them unless they have time to develop some expertise. I have never met a doctor who felt he was judged, in a malpractice suit, by "a jury of peers."

In the stroke case I presented earlier, the testimony of the plaintiff's expert was so outside the mainstream that the trial judge should never have allowed it. A more experienced judge would have recognized this. One doctor's opinion, unsupported by any medical evidence, does not establish standard of care, especially when there actually is strong evidence to the contrary.

The Fair and Reliable Medical Justice Act, introduced by Senators Michael Enzi (R-WY) and Max Baucus (D-MT) would create special health courts on a pilot project basis. This article states:
The bill's purpose is:

To restore fairness and reliability to the medical justice system by fostering alternatives to current medical tort litigation, including the creation of a special health care court, that promote early disclosure of health care errors and provide prompt, fair, and reasonable compensation to patients who are injured by health care errors;
To promote patient safety through early disclosure of health care errors; and
To support and assist states in developing such alternatives.
The bill would authorize the U.S. Secretary of Health and Human Services to award up to 10 demonstration grants to states for the development, implementation and evaluation of alternatives to current tort litigation for resolving disputes over medical errors. Within that context, the bill specifically authorizes the creation of a special health care court. The hallmark of such a court would be full-time judges with health care expertise, whose sole focus would be on addressing medical malpractice cases.
At Day on Torts, a blog by a trial attorney who represents "only plaintiffs in personal injury and wrongful death cases," Mr. Day wrote:
I wonder if anyone who drafted, sponsored, or supports this bill ever gave any thought to the Seventh Amendment or its counter-part in the constitutions of the 50 states?

Nah. Decisions concerning the responsibility of health care providers are too important to be left to patients.
Sorry, Mr. Day, but perhaps you should read the bill and the amendment again. Of course, your post only indicated that you read the article and didn't follow the link to the actual bill. The Seventh Amendment to the US Constitution states::
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
The bill proposes three types of models:
  1. Early Disclosure and Compensation Model

  2. Administrative Determination of Compensation Model

  3. Special Health Care Court Model
Nowhere in the bill does it state that a plaintiff cannot file a civil suit and specifically describes circumstances under which the plaintiff could file suit.

The intent of the bill is to establish these models and a review panel to report on the efect of the grants awarded on the number, nature and costs of health care liabliity claims; a comparison of the claim and cost information between States receiving grants; and a comparison between States receiving grants and States that did not receive grants to determine the effects of the grants and reforms on the liability envronment, health care quality, patient safety and patient and health care provider and organization satisfaction with the reforms.

Let your Senator know what you think about this bill.