Our neo-con friends are at it again, all for our own good, mind you. Before we all chip in to send them thanks, let's take a moment to reflect on the next "best thing" they wish to visit upon us.
Recently, they have begun circulating a pet proposal regarding medical malpractice. Or, more precisely, regarding medical malpractice victims and what to do about them. Philip K. Howard, chair of the conservative organ Common Good, has written a new prescription for tort deform which is remarkable even for someone like himself, who never misses an opportunity to wreak havoc with the justice system. Citing skyrocketing health care costs due to a blizzard of paperwork, unnecessary testing due to the practice of "defensive medicine", and unreliability of outcome in malpractice lawsuits due to the inability of regular folk to be able to handle such weighty matters consistently, he offers a solution that warms the cockles of where any insurance company's heart should be. He wants to give us "HEALTH COURTS".
These would be specialized forums for people with malpractice claims to go to, separate and distinct from our regular justice courts. In these new courts, there would be no juries: cases would be decided by administrative judges specially trained to handle the complexity of medical issues too risky to leave to the average "Jane" and "Jose". After all, as he so empathetically puts it, "any sick person who gets sicker can drag a doctor through years of litigation."
He is not troubled by the constitutional issues of taking a right to a jury trial away from someone who has lost so much already. He tells us that there are already Tax Courts, Bankruptcy Courts and Worker Compensation Courts all without juries, while neglecting to mention that all of these are creatures of statute, not of our traditional "common law", and thus were born that way. Health Courts would represent a radical departure in taking that which is well settled within the traditions of the common law and transplanting it to a Workers Compensation model. [By the way, how many injured folks do you know that feel they have been well looked-after by our Worker's Comp system?]
This is a bait and switch that is truly staggering in its enormity. The call for such bogus "courts" is buttressed upon faulty and manipulated data. Skyrocketing insurance costs have been shown time and time again to have nothing to do with malpractice verdicts, and malpractice case filings across the board are at one of their lowest points ever. The increase in paperwork throughout our health care industries is far more related to the increasing complexity in getting reimbursed (yes, paid) from governmental or private (read: "insurance company") payors than to anything having to do with defensive medicine. And the unpredictability of verdicts is the "Santa Claus" of the tort deformer: it's not a fact, but life is so much nicer for you if you make believe that it is.
Juries are there to decide issues which most often hinge on matters of credibility. Who is believable, about what, and why. There has never been any showing that juries have characteristic problems with complex issues: we trust them to decide copyright and patent issues, matters of science and technology in commercial contexts, DNA and fingerprinting in criminal ones. We leave it to juries to decide whether there is enough reliable evidence on hand to sentence a person to death. Yet we can't trust them to determine whether a doctor failed to live up to prevailing medical standards and whether a patient is entitled to money as a result?
Though the "health courtiers" cite an unnamed Harvard study claiming that malpractice juries can be wrong more than two times out of ten (though the methodology of any such study is highly questionable), they choose to breeze past the fact that it concedes correctness nearly 8 times out of that same 10! And they totally ignore the Harvard Medical Journal's findings of the manifold salutary effects of malpractice cases, among them: accountability, forced awareness of medical errors upon an unwilling profession, and proper recompense to the injured. (This Journal noted as well that the vast majority of those malpracticed upon never even find out about it, much less bring a lawsuit!)
So why would anybody consider scrapping a system that: even its harshest critics claim is right 80 per cent of the time; gives proper recompense; is at the heart of a cherished legal tradition; allows juries to express the community values that we all hear about so often; forces a sometimes myopic profession to confront its own shortcomings; has little to do with the rise in health care costs; and is, in fact, making up a smaller proportion of pending cases than ever before?
Consider this, from Betsy McCaughey, Ph.D., Republican former Lt. Governor of the State of New York:
"Now, more than ever, health courts are needed, because the number of lawsuits arising from hospital infections and medical errors are about to soar. Infection, for example, used to be considered the inevitable risk you face if you are hospitalized. No more. Because there is compelling evidence that almost all infections are preventable, hospitals are in a new legal situation."
Whatever would they say if some jury ruled that "almost all" infections were preventable? And, as the Harvard Medical Journal suggests, why don't they want to prevent them in the first place rather than try to rig up a neo-con-job court system to handle the problems that they know are about to occur?
Malpractice, when it occurs, is virtually always a mistake. Health courts, with impartial juries banished in favor of medical specialists as judges, would be a deliberate disaster. But only for the victims.