Page 2 ABA Washington Letter July 2006 July 2006 ABA Washington Letter Page 3

The ABA, while supporting the use of and experimentation with voluntary alternative dispute resolution techniques as welcome components of the justice system, expressed concerns last month that current proposals to create health courts could undermine the constitutional and other legal rights and remedies of injured patients. “The ABA firmly supports the integrity of the jury system, the independence of the judiciary and the right of consumers to receive full compensation for their injuries, without any arbitrary caps on damages,” Cheryl Niro, an incoming member of the ABA Standing Committee on Medical Professional Liability, testified June 22 before the Senate Health, Education, Labor and Pensions Committee. “It is for these reasons that ABA opposes the creation of any health court system that undermines these values by requiring injured patients to utilize health courts rather than utilizing regular state courts in order to be compensated for medical negligence,” she explained.

See also, text of testimony at story entitled "Testimony before Congress by an incoming Member of this Committee"

S. 1337, introduced by committee Chairman Mike Enzi (R-Wyo.) and Sen. Max Baucus (D-Mont.), would authorize funding for states to create demonstration programs to test alternatives to medical tort litigation. The programs would include early disclosure and compensation, administrative determination of compensation, and special health care courts. Enzi called his legislation a “fresh approach” to solving the medical liability problem. According to Niro, medical malpractice cases under current health courts proposals would be removed from the court system and placed in health courts operated by an administrative agency; judges and juries would be replaced by fact-finders with training in science or medicine; and injured patients would be forced to give up their right to a jury trial. A schedule of awards would be established that is similar to the Workers’ Compensation system; however, unlike that no-fault system, under which injured workers obtain a guaranteed award for waiving their right to a jury trial, injured patients who pursue their claims through health courts still would be required to prove liability. According to Niro, the schedule of awards is a de facto cap on non-economic damages that would work to the disadvantage of women, children and the elderly and has been found to be unconstitutional in at least 13 states. “The ABA opposes legislation that places a dollar limit on recoverable damages and operates to deny full compensation to a plaintiff in a medical malpractice action,” Niro said. “The ABA recognizes that the nature and extent of damages in a medical malpractice case are triable issues of fact that may be decided by a jury and should not be subject to formulas or standardized schedules,” she emphasized. Also testifying was Duke law professor Neil Vidmar, who said that most of the claims about juries and the tort system do not stand up to empirical scrutiny. He agreed with the ABA that some proposals for alternatives or changes to the tort system would abolish or severely curtail the constitutional right to trial by jury. In addition, he emphasized that alternatives to courts should be voluntary on the part of patients. Philip K. Howard, chairman of Common Good, supported special health courts because he said the current system has contributed to a debilitating distrust that makes reforming health care almost impossible. Health courts, he said, “can offer guidance on standards of care and the predictability needed for trust.”

Sen. John Cornyn (R-Texas), who also testified at the hearing, is drafting legislation that he said would address the concerns of Sen. Edward M. Kennedy (D-Mass.), the ranking minority member of the Senate committee. Kennedy emphasized in his statement for the hearing that “voluntariness is the first and most fundamental standard by which we should evaluate all alternative dispute resolution proposals.” The choice between a traditional court proceeding and the alternative process must be an informed choice made after the injury has occurred, he said, and merely obtaining the patient’s signature on one more consent form at the time he or she first visits a physician or enters a hospital is not sufficient. “Such pro forma procedures make a mockery of informed consent, turning the principle of voluntary participation into a sham,” he maintained.