How would you feel if your aging mother or father died due to medical malpractice but couldn't file a lawsuit. That your parent's case would be heard by a faceless, bureaucratic panel designed to reduce costs? How about if another anonymous board reviewed your deceased parent's case, found medical errors were made, yet determined that the survivors were only entitled to a small amount of compensation? This could be in our future as a push is being made by some legislators and non-profit organizations seeking to
do away with your right to a jury trial in medical malpractice cases.
One such non-profit organization seeking these massive changes is Patients for Fair Compensation, which purportedly seeks to "fix our broken malpractice system" with a "no-blame administrative compensation system" (Patients' Compensation System). Another legislator, Alpharetta Republican Senator Brandon Beach also proposed legislation to create a patient injury board (created and maintained at taxpayer cost). Let that sink in for a moment: a no-blame adminstrative system. No blame for a physician for a reckless decision or egregious error? Who would be on the board anyway? According to the proponents, a mix of "healthcare experts" who may or may not be inclined to rule against one in their own industry, perhaps ending up as one-sided justice. What would this new system, if enacted, mean for you as a citizen and patient?
- You would have to file a case for review by a panel of "heath care experts";
- The panel would have to find "avoidable harm" and would only then refer your case to a compensation board;
- The compensation board would recommend an amount to be awarded to the patient (or surviving family);
- No court case, no trial, no jury.
- Other effects would be that doctors would no longer feel obligated to order certain tests as they wouldn't be as concerned about protecting themselves from lawsuits.
Advocates of this system state that this change would be beneficial because plaintiffs would not have to wait years for their case to be heard, physicians' personal wealth and assets would not be at risk, physicians involved in the alleged or proven malpractice could keep practicing medicine. Those in favor also state that needless and unnecessary tests would be eliminated thus cutting costs.
Taking those arguments one by one:
Plaintiffs may have to wait for their case to go to trial because of a thorough review process of all the evidence. The standard of proof is extremely high when alleging professional negligence of a doctor. The process of alleging medical malpractice is different than a standard personal injury case for a reason. This thorough vetting of the patient's complaint, the medical records and discovery process protects both parties and allows cases with provable medical negligence to go forward.
Physicians' personal wealth and assets would not be at risk with the new system: Most physicians carry malpractice insurance; many professionals, medical and otherwise, do as well. This is not unusual or unreasonable. If the medical negligence is extremely outrageous and egregious, there could be a verdict that exceeds the amount of insurance that physician carries. At that point, a doctor's personal wealth could be at risk. If a jury's wisdom finds that the malpractice was so severe that the award amount exceeds the insurance available, is tapping into a doctor's assets outrageous? Is this a reason to do away with our constitutional right to a jury trial?
As for reducing the number of tests and procedures performed to diagnose a patient's problems: it is hard to discern whether the industry wants to reduce tests because of healthcare costs or because of patient advocacy. What one might label a needless test might be the one test that reveals what's wrong with a patient. Do we want to cut those tests?
I do want to note that I hold doctors and physicians in the highest regard. It is not an enjoyable or pleasurable thing to sue a doctor (but sadly, sometimes necessary). Also, it's easy to forget that we cannot hold them to a God-like standard; they are human and even the most talented and intelligent humans commit errors. However, there are clear instances of recklessness and egregious malpractice which our current (but not perfect) tort system handles effectively. Critics say that only 10%-20% of medical malpractice cases earn any award, but this is a good thing. It means our system is weeding out the questionable lawsuits against doctors with uncertain facts and resolving the serious, clear malpractice cases. To hand medical malpractice cases over to a series of bureaucratic panels and boards in order to reduce physician's insurance premiums and protect doctor's personal wealth assets is a weak argument for such a system. That such a taxpayer-funded bureaucratic system would reduce healthcare costs is not proven. And, oh, by the way, the
proposed bill would violate your 7th amendment Constitutional right to trial by jury, not a small matter.
If you have any questions about medical malpractice or suspect you or a loved one has been affected by medical malpractice, call me and I'd be glad to discuss your situation.