Health Courts: A Radical Proposal for Compensating Innocent Victims

The idea of specialized health care courts to handle medical malpractice cases sounds like a reasonable idea, but as developed by the Progressive Policy Institute (PPI), it's a very radical approach. It's also expensive, prone to change based upon political whim rather than principles of law, and it borrows heavily from countries with socialized medicine. Still interested? Read on.

The proposal eliminates juries in medical malpractice cases. Under PPI's proposal, juries would no longer decide medical malpractice cases, ostensibly because they are too complicated. However, juries routinely decide complex matters involving life and death. The guiding principle behind a citizen jury is that lay persons representing the values of the community decide what is and what is not acceptable behavior for their community. Under PPI's proposal, specialized health court decisions would be made by government chosen "experts" that do not necessarily reflect the values of the local community. This proposal completely undermines Americans' Seventh Amendment right to a jury trial, and rejects the values that support that right.

The proposal is expensive. It calls on the federal government to provide start-up funding to states in order to create these health care courts, and it creates an entirely new system of federal health care courts to arbitrate when health court decisions in different states are contradictory. State and federal budgets are already stretched, without being called on to create new, separate courts to handle what is already part of the current court system. This is an expensive, time-consuming and unwarranted demand.

The proposal is subject to Congressional whim. Compensation for injured patients would be determined by a pre-set payment schedule established by a Commission appointed by the President and Congress. But this President and the majority leadership of this Congress have a stated agenda that favors the insurance industry over innocent victims. What if the Commission's schedule is artificially low or doesn't account for individual circumstances? Damages for a victim who loses a finger due to medical negligence are different for an office worker than for a world renowned pianist.

The proposal unfairly looks to countries with socialized medicine. Not only would the Commission be appointed by a President with an agenda that doesn't favor victims, the Commission would be charged with reviewing awards for similar injuries in other countries as a way to keep down payments. This is a dangerous and completely unfair comparison. Unlike the United States, many countries provide their citizens with universal health care. Of course awards for similar injuries in these countries, which do not include government provided health care costs, will be less than awards in the United States, where past or future health care costs are often a majority of a jury's award.

The proposal unfairly adopts a one-size-fits-all schedule. Instead of innocent victims having their case decided by a jury that hears the facts of the case, a one-size-fits-all Commission rule would determine compensation. PPI's proposal assumes that similar cases should be treated alike, but the job of a jury is to decide each case based on the facts presented, not to make uniform rules that ignore individual circumstances.

March 2005