Wrong Remedy

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Committees in both chambers of Congress are considering legislation that would create “health courts” as an alternative to the medical liability system now in place at the state level.

Health court proposals in the Senate and the House of Repre­sen­tatives would remove medical liability cases from state court systems and put them under the jurisdiction of an ad­min­­istrative agency. Judges and juries would be replaced by administrative fact finders with training in science or med­icine, and injured patients would lose their right to a jury trial. The legislative proposals in Congress also would create a schedule of awards for noneconomic damages, ef­fectively imposing a cap for those types of damages.

Proponents of health courts maintain that few injured patients are compensated under the current medical liability system, and that there is a lack of consistency in awards. They say health courts would be similar to workers’ compensation. But unlike workers’ comp—a no-fault system in which injured workers waive their right to a jury trial in return for a guaranteed award—a health court system still would require injured patients to prove liability before qualifying for their fixed-amount awards.

In February, the ABA’s policy-making House of Dele­gates adopted a policy opposing “the creation of health care tribunals that would deny patients injured by medical negligence the right to request a trial by jury or the right to receive full compensation for their injuries.”

That action was important because of the ABA’s “strong history of firmly supporting 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,” says Janice F. Mulligan of San Diego. She chairs the Standing Committee on Medical Professional Liability, the primary sponsor of the measure.

The policy reaffirms the ABA’s opposition to dollar limits on damages that operate to deny full compensation to plaintiffs in medical malpractice actions, and asserts that the nature and extent of such damages should not be subject to formulas or standardized schedules.


Sens. Michael B. Enzi, R-Wyo., and Max Baucus, D-Mont., have introduced a bill that would authorize funding for states to create demonstration programs to test health courts and other alternatives to litigation for resolving medical malpractice claims. Enzi chairs the Health, Education, Labor and Pensions Committee.

Sen. John Cornyn, R-Texas, has indicated that he is crafting legislation that, while supporting creation of health courts, would not deny injured patients the right to a jury trial.

In the House, a bill introduced by Rep. William “Mac” Thornberry, R-Texas, would provide grants to states to establish health courts.

Testifying this summer at congressional hearings, Cheryl I. Niro of Chicago said that the ABA has long “supported the use of and experimentation with voluntary alternative dispute resolution methodologies as welcome components of the justice system, provided the disputant’s constitutional and other rights and remedies are protected.” But, she said, the ABA supports the use of alternatives to litigation in medical cases only when they are used voluntarily after a dispute has arisen.

Further, Niro testified, “the health court scheme would impose a de facto cap on noneconomic damages in injury claims.” This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.

Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office publication.

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