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Medical Courts Would Heal Infirmities of Legal System Betsy McCaughey
Investor's Business Daily, July 17, 2003 PERSPECTIVE
Don't shed tears over the recent failure of Congress to enact caps on "pain and
suffering," or noneconomic damages in medical malpractice cases.
Malpractice reform is urgently needed, but caps are not the remedy.
A cap would limit what doctors and their insurance companies have to pay after
a verdict, but it won't save the rest of us from unfair verdicts.
Studies show that in medical cases, most verdicts against defendants - as many
as 80% of them - are unfair and unjustified by scientific evidence.
Caps on "pain and suffering" will merely cap the injustice. Why cap it when you
can eliminate it?
Congress should establish medical courts, where the verdicts will be made by
judges or special masters trained to evaluate scientific evidence.
Imagine any other area of the law with 80% wrong verdicts. If that were true
in criminal law, no one would suggest that the remedy is caps on jail time.
Relies On The Untrained
To ensure fairer verdicts in malpractice cases, the verdicts need to be made
by experts. Ordinary juries are not up to the task.
Look at it this way. If you had chest pains, you wouldn't go to a jury of your
peers for a diagnosis. You'd go to an expert.
It's equally unreasonable to expect a jury of peers to determine after the fact
whether you were diagnosed and treated properly. They don't have the scientific
training to do that, either.
Most hospitals won't permit registered nurses to diagnose patients, because they
haven't had enough training. But the jury system relies on accountants, bankers,
auto mechanics, chefs, etc. to second-guess how a patient was diagnosed and treated.
The results: Most patients injured by medical negligence never receive a dime
of compensation, and most winners in court were never injured by negligent care.
Juries tend to ignore the issue of what caused a patient's harm, though that is
precisely what the verdict is supposed to determine.
For example, infants born with cerebral palsy are a heart-wrenching problem.
Cerebral palsy leaves babies with little muscular control and sometimes unable
even to nurse. They often survive into adulthood, wheelchair-bound, incontinent,
sometimes mentally retarded and in need of constant care.
It's a tragedy that makes parents desperate to blame someone, and jurors understandably
are sympathetic. Thirty percent of all lawsuits against obstetricians are for
cerebral palsy. The suits usually claim that the infant was deprived of oxygen
at birth due to physician error. Yet research shows that is rarely the actual
cause.
Cerebral palsy is usually caused before birth, possibly by genetic defects or
maternal infection that damages the fetus' brain, or other abnormalities.
That finding is confirmed in a 1999 British Medical Journal study and a newly
released study from the American College of Obstetricians and Gynecologists and
the American Academy of Pediatrics, (endorsed by the Centers for Disease Control
and Prevention, the March of Dimes, and many other health organizations.)
Despite these findings, when cerebral palsy victims are wheeled into a courtroom,
jurors frequently blame the doctor and make huge awards.
It's a system gone wrong. The Harvard Medical Practice Study analyzed 30,000
patient records at 53 hospitals across New York state and 67,000 court records.
Investigators found that on the one hand, patients actually injured by physician
negligence rarely sue. Only 2% filed a claim. In general, people on Medicare or
Medicaid, or with low incomes, were least likely to sue, the study showed.
On the other hand, few people who sue their doctors and win are actually victims
of negligence. Harvard investigators concluded from the medical records that 80%
of the winning litigants had not been negligently harmed.
It's unfair to physicians, conflicts with our society's commitment to justice
and cheats actual victims of negligence who might receive more help faster in
a fairer system.
Negligently injured patients and winners in court are generally two different
groups.
A study of medical malpractice in Utah and Colorado, funded by the Robert Wood
Johnson Foundation, reached the identical conclusion.
The current system's defenders argue that few doctors ever get sued - only the
bad apples who shouldn't be practicing.
Not true. For example, in New York state 60% of obstetricians, 60% of orthopedists
and 70% of neurosurgeons were sued in the last five years.
That is why insurance companies do not experience-rate doctors. All doctors in
a specialty pay the same liability premiums, because whether a doctor has been
sued is no indication of competence or future risk. The lawsuits and verdicts
are that random.
"We must create a reliable system of medical justice," says Philip K. Howard,
an attorney and founder of Common Good, a nonprofit group that promotes medical
courts and other legal reforms.
Predictable verdicts will also relieve physicians who are not at fault from pressure
to settle, rather than risk an unfair verdict and enormous award. Generally, 23%
of lawsuits are settled before a trial.
Doesn't Violate Constitution
There's traffic court, family court, vaccine court, tax court and more. What's
needed now are medical courts.
Would a medical court violate the U.S. Constitution's guarantee of a jury trial?
No, because medical court would be a first step, with the right to a later jury
trial preserved. The U.S. Supreme Court has long recognized Congress' authority
to create civil courts without juries for certain types of cases.
Cases decided by judges without a jury take 50% less time, which means faster
and less-expensive justice for the truly deserving.
England, Japan, Germany, France, and many other countries have eliminated juries
in medical malpractice cases.
Congress should establish medical courts. Capping noneconomic damages will help
control the cost of malpractice insurance, but it won't save doctors or patients
from an unfair system.
Betsy McCaughey, Ph.D., is an adjunct senior fellow at the Hudson Institute and
former lieutenant governor of New York state.
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