The Medical Malpractice Reform Debate Continues

Well it appears that Arizona Senator Jon Kyl has been constantly denouncing plaintiff attorneys for representing victims of medical malpractice so no wonder why he has supported a new idea to “reform” our justice system. According to a recent article in the Arizona Republic, Kyl supports the idea of special health courts to “try” medical malpractice cases without juries. Well Senator Kyl, with all due respect, I do not believe your rhetoric about frivolous lawsuits and driving doctors out of business. I do not beleive that the facts support such an extreme position.

The Republic quotes Kyl who says:

“Generally speaking, the concept of a health care court is one that I think really should be examined,” said Kyl, a lawyer.

What Kyl does not say and what the proposed health care court would do is take the decisions about when a doctor has harmed a patient out of the hands of a jury and into the hands of a judge. The article refers to consumer groups who really show how and why Senator Kyl misses the point on this issue. We insist that juries make life and death decisions about capital punishment and crime, but apparently Senator Kyl believes that juries cannot make simple decisions about whether a physician operated on the wrong body part and if so, what the victim should receive in compensation. Again, I mean no disrespect to Senator Kyl but I firmly believe that juries in Maricopa County do a better job than he credits them. Extreme cases will always draw public attention. Too often we hear about supposed outrageous large jury verdicts favoring a plaintiff. However, what about the other extreme? For example, I recently heard from some colleagues about a case involving a physician who operated on the wrong knee. Apparently, the jury found in favor of the doctor because in its view, the plaintiff’s healthy knee would have required surgery in the future anyhow. The doctor clearly operated on the wrong body part; however, the jury decided after reviewing the evidence, that the plaintiff had not been harmed. After hearing about this verdict, I must admit that I was a bit shocked. However, I did not run out to the legislature and insist that our government impose automatic liability on any doctor who operates on the wrong body part. I guess that setting aside any rhetoric, the jury was in the best position to review the evidence and makes its decisions.

Some reform measures may be supported by all sides in the malpractice debate. For example, the Arizona Medical Board should take a hard line approach toward doctors with a problem history including pulling licenses of any physician with more than three, four or five serious complaints. Also, I would consider the concept of a healthcare court to oversee discovery but still guarantee the constitutional right to trial by jury. Such a specialized court has been benefical in other legal areas and may prove beneficial to help educate judges about complex medical malpractice issues. We have a domestic relations court, a probate court and a criminal court. Perhaps the time is right for a healthcare court as well. However, please do not take away our sacred constiututional right to trial by a jury of our peers under the guise of reform based upon a politically charged emotional debate without supportive facts.

I previously wrote some comments about the medical malpractice debate. Previously I shared my opinions to rebut the rhetoric that frivolous lawsuits are driving up the cost of healthcare premious. I also shared some thoughts about reform which may be universally supported. Take a look at these entries for a more thorough discussion. In one entry, I discussed using medical malpractice screening panels to reform our system. In another entry, I cited factual support to show that damage caps do not stop medical malpractice insurance premiums from rising. Also, USA Today came out with an article in 2003 which sums up both sides of the medical malpractice debate fairly well. Do not rely on these opinions. I encourage you to do your own homework and let me know your thoughts on these devisive issues.