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.