We don’t get involved in presidential politics so we’re watching from afar - but it doesn’t mean we’re not fascinated! “Who’s the real conservative?” is one question that keeps popping up. Perhaps it’s former personal injury lawyer, Ted Cruz? Perhaps it’s what some call “crony capitalist” Donald Trump? Who knows?
And besides, what exactly are conservative values these days? Here are a few things that come to mind: Small government. Local rather than centralized government. Fewer taxes. Everyone should be responsible for what they do; wrongdoers should be held accountable. No privileged classes. Constitutional rights. Individual rights. The rule of law. Freedom. Am I close? As Linda Richman would say, “Talk amongst yourselves.”
OK enough of that. Today we’re focusing on a group of folks who may think they are – but clearly are not – conservative. That would be the health care industry proponents of a bill they’re shopping around, which would set up an entirely new state government agency to take care of the relatively few medical malpractice cases the make it through our courts today. (See our post on the last litigation statistics.) This system would be called the “Patient Compensation System.” It’s a system that would completely do away with judges and juries in medical malpractice cases. It would replace them with a new, centralized government agency made up of political appointees and government bureaucrats representing the powerful (and privileged) medical and business establishments. And these individuals would award compensation to injured patients based on predetermined schedules, i.e., so much for an eye, so much for a leg, so much for a deceased child. All patients would be forced into this system with no ability to opt out.
The Center for Justice & Democracy has just released a new study about this proposal, called “The New Patient Compensation System – Government Harming Patients.” The report finds that this proposal would “tilt the legal playing field dramatically in favor of the health care industry, eviscerate the juries’ fact-finding role, ignore patients’ rights to adequate compensation, disrupt the settlement process and present citizens with no freedom to opt-out." Moreover,
Their wholesale dismissal of local juries, the creation of an entirely new centralized governmental agency to handle what are a relatively small percentage of cases in our court system and the likely costs of maintaining such a system are why similar proposals have gone nowhere in Congress or in any state in the nation.… Indeed, no credible analyst believes removing the relatively few medical malpractice cases that now proceed through the civil justice system and instituting a new government agency to handle them is a money-saver.
Proponents ignore this reality and instead argue that their system will save money as physicians will stop practicing “defensive medicine,” i.e., performing tests and procedures due solely to liability concerns. How is this system eliminating all liability concerns? But perhaps more importantly, studies in this area show that when a state strips away a patient’s right to sue in court, health care costs not only don’t drop – they increase as the deterrence function of the tort system is weakened leading to the practice of riskier medicine.
And as our last post showed, the real reason doctors may order extra tests and procedures – if they do it at all – is the revenue and profit they can collect under our health care system’s fee-for-service medicine.
Then there are the constitutional problems. The constitution doesn't seem all that important to these folks. The study notes,
Given the magnitude of what would be taken away by this bill – rights firmly established in virtually every state constitution in the nation – patients are clearly getting little in return and many will be worse off. This proposal is plainly unconstitutional.…
[O]nce local juries, who represent the community and are the essence of local government, are banned from deciding compensation, and their role is taken over by a centralized government agency, the system becomes rigid, unaccountable and not to be trusted. Forcing patients into such a system violates our constitutional rights as citizens. Juries are essential to protect our rights and freedom. Proponents of this proposal are misguided and their proposal should be rejected as bad public policy.
Misguided, for sure. Unconstitutional? No doubt. Conservative? Definitely not.