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Center for Justice and Democracy
90 Broad Street, Suite 401 New York, New York 10004 www.centerjd.org | centerjd@centerjd.org 212.267.2801 |
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Center for Justice and Democracy
90 Broad Street, Suite 401 New York, New York 10004 www.centerjd.org | centerjd@centerjd.org 212.267.2801 |
MYTHBUSTER!
Health Industry Tribunals –HITting Patients While They’re Down
Health Industry Tribunals – or administrative courts just for medical malpractice cases – are touted as the answer to medical malpractice problems. But if the fate of injured patients is considered, nothing could be further from the truth.
Health Industry Tribunals (HITs), sometimes called “Health Courts,” would be terrible for most patients injured by medical malpractice. HITs would take away the right to jury trial and force all medical malpractice cases into an administrative system where compensation is determined according to a “schedule of benefits,” i.e., so much for a leg or an eye. These decisions would be made by a “review board” or, in a contested case, by an individual who is not a judge. Juries are not allowed.
HITs are even worse for patients than the disastrous workers’ compensation model, on which they are based.
Unlike workers’ comp, which is a no-fault system, contested cases under HITs force patients to litigate their cases, including proving negligence, before an individual who may come directly from the health care or insurance industry and may have no legal training. Moreover, as demonstrated by the workers’ comp experience, this system would make it more difficult for patients to find qualified attorneys who could devote the time and resources needed to litigate a complicated contested medical malpractice case.
Unlike jury verdicts, the “schedule of benefits” will be chipped away at the political whim of politicians.
Once codified, any kind of statutory administrative system is at the whim of industry money and the regular influence-peddling that reaches politicians. One of the lessons of workers’ comp is that benefits, even if initially adequate, will fall drastically over time as insurers or employers inevitably repeatedly pressure for their reduction.
Under workers’ comp, because of the inadequacy of benefits, it is when injuries are most severe, as in the case of serious brain damage or other catastrophic injury, that the system fails most completely.
Those with permanently disabling injuries are finding themselves barely able to survive under most workers’ comp systems. The HIT model also provides a backdoor way for Congress to cap non-economic, or “quality of life” compensation, or possibly not allow it at all. These damages are most critical for the most catastrophically injured and for children, senior citizens, low-wage workers, and women who don’t work outside the home.
The notion that jurors are unable to handle medical malpractice and other complex cases has been roundly rejected.
Empirical studies consistently support the view that a jury’s ability to handle complex litigation, including medical malpractice cases, is not a problem and has never been a problem. In response to theories voiced as far back as the 1940s about juries’ competence in evaluating medical experts cases, there have been numerous studies that have looked at jury performance in medical malpractice and other complex types of trials. The conclusions of those many studies are clear and consistent: juries are competent, effective, fair decision-makers. In fact, juries, through the group processes of collaboration and deliberation, are particularly well-suited for complex cases.
Medical errors will increase under this proposal as the deterrence and disclosure functions of the civil justice system are disrupted.
Removing claims from the tort system circumvents rules about standards of conduct that have evolved over the years to protect patients who have no way to protect themselves. It disrupts the important functions of the tort system: deterrence of unsafe practices and the disclosure of dangers to the public, and the evolution of written precedents. When disputes are resolved without trial and without a public record, wrongdoers can prolong misconduct and suppress information for years about dangerous practices.
HITs were developed by “Common Good,” an organization with a decidedly anti-consumer history on liability issues.
“Common Good” was founded by Philip K. Howard, Vice-Chairman of the corporate law firm Covington & Burling, one of the principal architects of the so-called “tort reform” movement as counsel for Big Tobacco. Common Good’s contempt for the jury system is contrary to the views of most judges, and the American public who, according to polls, believe that juries are the best arbiters of disputes that we have in this country.