Legislation that would provide federal funding for experimental “health courts” for medical malpractice cases has once again been introduced in both houses of Congress.
The bill calls for the federal government to fund experimental programs, yet to be devised, in numerous states. If the current version is like the last version from two years ago, several different models of courts are proposed, each of which raises various issues:
- The first “Purpose” of the act is to “to restore fairness and reliability to the medical justice system.” Given that research shows the current system works remarkably well, starting with a false premise probably doesn’t help. (See, The Myth of Frivolous Litigation)
- The Seventh Amendment to the U.S. Constitution guarantees jury trials, and at least some of these models clearly look to do away with the jury.
- While details are lacking there are a few that appear, and this includes the effort to limit non-economic loss (pain and suffering). Instead of a jury doing what is fair and reasonable under the unique circumstances of a case, the government will create “a defined payment schedule.” This is an inherently unworkable and unfair system for it is silly to assume that all injuries can be neatly placed into categories. It will, of course, adversely affect those most seriously injured who do not fit into the neat little government boxes that are created.
- One of the other rules provides for, “payment for the net economic loss of the patient, on a periodic basis.” But if a person lost something today, why should they be forced to wait for their compensation? This statement looks like it was drafted by the insurance lobby so that they could write annuity policies for the future payments.
- A least one of the models discourages fair offers of settlement. How? By this provision: “provide immunity from tort liability to any health care provider or health care organization that offers in good faith to pay compensation.” Good faith is a malleable concept. By merely making a token offer — not one of fair value but just good enough to get past “good faith” — they are rewarded with immunity from suit.
- And finally a political question: Why is the federal government extending its powers even more into matters that are almost always strictly state issues?
Addendum, 5/30/07: Why Health Courts Are Unconstitutional (Center for Justice and Democracy); Health Courts: Bad for Patients and Unconstitutional (Center for Justice and Democracy, via TortDeform)